Brown v. Dees

Filing 12

MEMORANDUM re. Complaint 1 (Order to follow as separate docket entry) re Signed by Honorable Sylvia H. Rambo on 3/24/17. (ma)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
JOSEPH A. BROWN,
Plaintiff
vs.
SARAG DEES,
Defendant

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CIVIL NO. 1:17-CV-00025

(Judge Rambo)

MEMORANDUM
Background
On January 4, 2017, Plaintiff Joseph A. Brown,
an inmate (number 09401-007) incarcerated at the United
States Penitentiary at Lewisburg, Pennsylvania (“USPLewisburg”), filed a complaint pursuant to 28 U.S.C. §
1331 setting forth claims under Bivens v. Six Unknown
Named Agents of the Federal Bureau of Narcotics, 403
U.S. 388 (1977) against Sarah Dees, a physician
assistant employed at USP-Lewisburg. (Doc. 1.) Brown
alleges that Dees failed to provide him with adequate
medical care on January 2 and 3, 2015, for burns he
sustained when he spilled scalding, hot water on his

groin.1

On January 13, 2017, Brown filed a motion to

proceed in forma pauperis (Doc. 6) and on January 20,
2017, an authorization to have funds deducted from his
prison account to pay the filing fee in installments.
(Doc. 10.)

In the motion to proceed in forma pauperis

Brown admitted that he had previously brought 3 or more
actions or appeals in a court of the United States that
were dismissed as frivolous, malicious or for failure to
state a claim upon which relief may be granted.
However, Brown claims that he is in imminent danger of
serious physical injury.(Doc. 6, at 2.) In support of
that claim Brown merely states as follows: “Staff has
deliberately refused the plaintiff medical-treatment for
serious medical needs for traumatic incidents that the
plaintiff has suffered on multiple occasions and because
the plaintiff has a history of suffering traumatic
incidents caused by chronic P.T.S.D. the medical staff
will do it again and seeks injunctive relief to stop the
on-going misconduct.” (Id.)
Brown claims that he “accidently spilled 190E hot
water on his penis, and groin areas” and Dees “refused
and failed to respond to this serious medical need.”
(Doc. 1, at 2.)
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Brown made the exact same claim, i.e., being
burned with scalding water, in the case of Brown v.
Sarah Dees, et al., 1:16-CV-1585 (M.D. Pa. filed July
28, 2016).

That case was dismissed on December 8, 2016,

under the three-strikes provision, 28 U.S.C. § 1915(g),
of the Prison Litigation Reform Act, Pub. L. No. 104134, 110 Stat. 1321 (April 26, 1996)(“PLRA”).2 Brown v.
Dees, 2016 WL 719235, at *3 (M.D.Pa. Dec. 8, 2016).
Brown admits that he has three strikes under 28
U.S.C. § 1915(g).

Furthermore, an electronic search on

PACER confirms that prior to filing the above-captioned
case Brown did file 3 or more cases that were dismissed
under 28 U.S.C. § 1915(e)(2) of the PLRA. Those strikes
are enumerated in the memorandum issued by this court on
2.

Section 1915(e)(2) provides:
(2) Notwithstanding any filing fee, or any portion
thereof, that may have been paid, the court shall
dismiss the case at any time if the court
determines that (A) the allegation of poverty is
untrue; or (B) the action or appeal (i) is
frivolous or malicious; (ii) fails to state a claim
on which relief may be granted; or (iii) seeks
monetary relief against a defendant who is immune
from such relief.

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December 8, 2016, in the prior case which was dismissed
under the three strikes provision. Brown v. Dees, 2016
WL 719235, at *3 (M.D.Pa. Dec. 8, 2016). The court
incorporates herein by reference the facts, including
the enumeration of Brown’s prior cases which were
dismissed under 28 U.S.C. § 1915(e)(2)(B)(ii), and the
reasoning set forth in the memorandum of December 8,
2016. (Id.)
On February 21, 2017, Brown filed a motion for
an extension of time of 60 days to pay the filing fee.
(Doc. 11.)

For the reasons set forth below the court

will deny the motion for extension of time and dismiss
this case under the three strikes provision.
Discussion
The PLRA in an effort to halt the filing of
meritless inmate litigation, enacted what is commonly
referred to as the "three strikes" provision.

Codified

at 28 U.S.C. § 1915(g), the “three strikes” rule
provides that an inmate who has had three prior actions
or appeals dismissed as frivolous, malicious, or for
failing to state a viable claim may not proceed in a

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civil action in forma pauperis “unless the prisoner is
in imminent danger of serious physical injury.”

See 28

U.S.C. § 1915(g), and Abdul-Akbar v. McKelvie, 239 F.3d
307, 312 (3d Cir 2001)(en banc).

The “imminent danger”

exception to § 1915(g)’s “three strikes” rule is
available “for genuine emergencies,” where “time is
pressing” and “a threat ... is real and proximate.”
Lewis v. Sullivan, 279 F.3d 526, 531 (7th Cir.2002).
“Imminent danger” is assessed not at the time of the
alleged incident, but rather at the time the complaint
is filed. Abdul-Akbar, 239 F.3d at 312.

Furthermore,

the Court of Appeals for the Third Circuit explained
that
“[i]mminent” dangers are those dangers which are
about to occur at any moment or are impending.
By using the term “imminent,” Congress indicated
that it wanted to include a safety valve for the
“three strikes” rule to prevent impending harms,
not those harms that had already occurred. The
imminent danger exception allows the district
court to permit an otherwise barred prisoner to
file a complaint I.F.P. if the prisoner could be
subject to serious physical injury and does not
then have the requisite filing fee.
Abdul-Akbar, 239 F.3d at 315.

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As stated above Brown claims that he is in
“imminent” danger of serious physical injury.
After reviewing Brown’s complaint and the assertions
regarding “imminent” danger set forth in his motion to
proceed in forma pauperis, the court concludes that
Brown’s allegations are speculative and do not satisfy
the threshold criterion of the imminent danger exception
of 28 U.S.C. § 1915(g). Clearly, at the time he filed
the complaint he was not in imminent danger of serious
physical injury as contemplated by the statute.
Brown is required to pay the full filing fee at
the same time he files the complaint. Dupree v. Palmer,
284 F.3d 1234, 1236 (11th Cir. 2002); Brooks-Bey v.
Schmerfelt, 2011 WL 1398472 (M.D.Pa. Mar. 21, 2011).
Consequently, the motion for extension of time will be

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denied and the complaint dismissed under the three
strikes provision.
An appropriate order will be entered.

s/Sylvia H. Rambo
SYLVIA H. RAMBO
United States District Judge
March 24, 2017

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