McCarthy v. Jones et al
Filing
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MEMORANDUM re pltf's mtn for lv to proceed ifp 5 (Order to follow as separate docket entry)Signed by Honorable William W. Caldwell on 6/1/17. (ma)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
JOHN J. McCARTHY,
Plaintiff
vs.
JOHN E. JONES, et al.,
Defendants
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CIVIL NO. 1:CV-17-0404
(Judge Caldwell)
MEMORANDUM
I.
Introduction
The pro se plaintiff, John McCarthy, a former federal inmate, initiated this
action on March 3, 2017, while housed at the United States Penitentiary in Lewisburg,
Pennsylvania. (ECF No. 1, Compl.). Presently before the court is McCarthy’s motion for
leave to proceed in forma pauperis (IFP). (ECF No. 5).
For the reason that follow, McCarthy’s IFP motion will be denied. The action
will therefore be dismissed without prejudice unless McCarthy pays the requisite filing fee
of $400.1
II.
Standard of Review
“In the Prison Litigation Reform Act of 1995 (PLRA), 110 Stat. 1321–66,
Congress placed several limitations on prisoner litigation in federal courts.” Bruce v
Samuels,
1
U.S.
,
, 136 S.Ct. 627, 630, 193 L.Ed.2d 496 (2016). One such
Effective May 1, 2013, an administrative fee of $50 is to be paid in addition to the $350
filing fee required upon filing of a civil action, for a total of $400. The $50 fee does not apply to
persons granted in forma pauperis status under 28 U.S.C. § 1915.
limitation was the “three-strikes provision: Prisoners whose suit or appeals are dismissed
three or more times as frivolous, malicious, or failing to state a claim on which relief may be
granted are barred from proceeding IFP ‘unless the prisoner is under imminent danger of
serious physical injury.’ § 1915(g).” Id. at
, 136 S.Ct. at 630; see also 28 U.S.C. §
1915(g).
“[A] prisoner may invoke the ‘imminent danger’ exception only to seek relief
from a danger which is ‘imminent’ at the time the complaint is filed.” Abdul-Akbar v.
McKelvie, 239 F.3d 307, 312 (3d Cir. 2001) (en banc). “By using the term ‘imminent,’
Congress indicated that it wanted to . . . prevent impending harms, not those harms that
had already occurred.” Id. at 312-15. However, an inmate can meet the imminent danger
exception by alleging a continuing danger of serious physical injury. Prall v. Bocchini, 421
F. App’x 143, 145 (3d Cir. 2011)(nonprecedential); Chavis v. Chappius, 618 F.3d 162, 17071 (2d Cir. 2010) (prisoner can establish imminent danger of physical harm by recounting
recent injuries that reveal an “ongoing pattern of acts” as well as threats of future harm);
Andrews v. Cervantes, 493 F.3d 1047, 1056- 57 (9th Cir. 2007) (“a prisoner who alleges
that prison officials continue with a practice that has injured him or other similarly situated in
the past will satisfy the ‘ongoing danger’ standard”). However, vague, general, or
conclusory allegations are insufficient to establish that a plaintiff is in imminent danger.
See Ball v. Famiglio, 726 F.3d 448, 468 (3d Cir. 2013), abrogated on other grounds by,
Coleman v. Tollefson,
U.S.
,
, 135 S.Ct. 1759, 1763, 191 L.Ed.2d 803 (2015).
When evaluating an allegation of imminent danger of serious physical injury,
the court must determine whether the inmate has drawn “an adequate nexus between the
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claims [s]he seeks to pursue and the ‘imminent danger’ [s]he alleges.” Ball v. Hummel, 577
F. App’x 96, at n.1 (3d Cir. 2014)(nonprecedential) (citing Pettus v. Morgenthau, 554 F.3d
293, 296 (2d Cir. 2009)). “[T]here must be a nexus between the imminent danger a threestrikes prisoner alleges to obtain IFP status and the legal claims asserted in the complaint.”
Pettus, 554 F.3d at 297. “In deciding whether such a nexus exists, [courts] will consider (1)
whether the imminent danger of serious physical injury that a three-strikes litigant alleges is
fairly traceable to unlawful conduct asserted in the complaint and (2) whether a favorable
judicial outcome would redress that injury.” Pettus, 554 F.3d at 298-99 (emphasis and
footnote omitted).2
III.
Allegations of the Complaint and Imminent Harm
In his Complaint, McCarthy names the Honorable Judge Jones and
Magistrate Judge Carlson as defendants. He claims both judicial officers acted improperly
when handling two recently filed actions, a civil rights action and a habeas action.3 He
claims that as an inmate with three strikes, who did not pay the filing fee or submit an
application for in forma pauperis asserting a claim of imminent harm, the Defendants did
not have jurisdiction to rule on his cases or issue an order to prison officials to deduct the
filing fee from his prison account. (ECF No. 1, Compl.) He also argues that the
2
McCarthy has been released from prison. However, he was incarcerated at the time he
filed this civil rights action, so the Prison Litigation Reform Act still applies. Defreitas v. Montgomery
Cty. Corr. Facility, 525 F. App’x 170, 176 (3d Cir. 2013)(nonprecedential)(citing Ahmed v.
Dragovich, 297 F.3d 201, 210 (3d Cir. 2002)).
3
See McCarthy v. Caldwell, Civ. No. 17-CV-0008 (M.D. Pa.) (Jones, J.) (civil rights action
against the undersigned) and McCarthy v. Ebbert, No. 17-CV-0015 (M.D. Pa.) (Jones, J.) (petition
for writ of habeas corpus filed pursuant to 28 U.S.C. § 2241).
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undersigned improperly ruled on prior cases he filed. (Id., ¶ 6). He claims he was denied
meaningful access to the courts as a result of the Defendants’ actions. (Id., ¶ 9).
In his application to proceed in forma pauperis (ECF No. 5), McCarthy affirms
that:
prior to the filing of the complaint in this action and while a prisoner
as that term is defined in 28 U.S.C. § 1915(h), [he] 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.
(Id., p. 1). He seeks to proceed in forma pauperis by asserting a claim of imminent danger
of serious physical injury. (Id., p. 2). He explains that he was under imminent danger of
serious physical injury at the time he filed the Complaint based on the following:
Because Defendants are indifferent to [his] serious medical needs
and allow prisoners and staff to assault [him].
(Id.)
IV.
Discussion
As noted above, an inmate with “three strikes” is denied the opportunity to
proceed in forma pauperis unless he can show “imminent danger of serious physical injury”
at the time he filed the complaint. 28 U.S.C. § 1915(g); Abdul-Akbar, 239 F.3d at 312.
Aside from McCarthy’s admission of being a “three striker,” the court is
familiar with McCarthy’s litigation history and has already had the opportunity to address his
status as such. See McCarthy v. Warden, U.S.P. Lewisburg, No. 99-CV-1587 (M.D. Pa.
Apr. 13, 2000) (ECF No. 5). Other courts have also confirmed McCarthy’s “three strike”
status.
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By 1996, [McCarthy] had filed 136 cases in the United States
District Court for the District of Connecticut alone and an injunction
was entered against him. See McCarthy v. Meachum, 1996 WL
905938 (Nov. 15, 1996). The plaintiff admits that he is beyond §
1915's three-strike, and the undersigned’s review of his lawsuits
confirms that admission. At least three of the plaintiff’s prior civil
actions or appeals have been dismissed as frivolous or for failure
to state a claim.
McCarthy v. O’Brien, No. 13-CV-70, 2014 WL 795074, *3 (N.D. W. Va. Feb. 27, 2014)
(footnote collecting McCarthy’s cases dismissed as frivolous or for failure to state a claim).
With this issue conclusively resolved, the court must determine whether McCarthy may
proceed in forma pauperis under 28 U.S.C. § 1915(g).
McCarthy’s Complaint asserts his dissatisfaction with the judicial Defendants’
handling of his habeas and civil rights action. These allegations, taken as true, in no
conceivable way demonstrate an imminent life-threatening emergency. He does not allege
that Defendants’ actions placed him in imminent danger of serious physical harm. To the
extent he argues in his application to proceed in forma pauperis that “Defendants” were
indifferent to his serious medical needs or safety, his allegations are vague, general and
conclusory allegations and therefore insufficient. Famiglio, 726 F.3d at 468. Accordingly,
McCarthy has not demonstrated the necessary imminent danger of serious physical injury
to proceed in forma pauperis on the claims asserted in his Complaint.
V.
Conclusion
Because McCarthy has at least three “strikes” and he has not demonstrated
that he was in imminent danger of serious physical injury at the time he filed his Complaint,
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he will not be permitted to proceed in forma pauperis under 28 U.S.C. § 1915(g).
Accordingly, McCarthy may not proceed in this action without prepayment of the $400 filing
fee. Should McCarthy pay the full filing fee, the court will proceed to screen his Complaint
pursuant to 28 U.S.C. § 1915A. His failure to pay the filing fee will result in the dismissal of
his action without prejudice.
An appropriate order follows.
/s/ William W. Caldwell
William W. Caldwell
United States District Judge
Date: June 1, 2017
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