Brown v. Gilligan et al
MEMORANDUM re pltf's mtn to proceed ifp 9 (Order to follow as separate docket entry)Signed by Honorable Sylvia H. Rambo on 9/28/17. (ma)
UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
JOSEPH A. BROWN,
C.O. GILLIGAN, et al.,
Before the Court is pro se Plaintiff Joseph A. Brown’s complaint filed
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
three corrections officers and a physician’s assistant at the Lewisburg United States
Penitentiary. (Doc. No. 1.) Plaintiff has also filed a motion for leave to proceed in
forma pauperis (Doc. No. 9) along with a prison authorization form (Doc. No. 10.)
The Court will now screen the complaint prior to service pursuant to its obligations
under 28 U.S.C. § 1915A and § 1915(e)(2).
Plaintiff alleges that on April 1, 2016, he was assaulted in the shower area
by the three defendant correctional officers because he refused to stop filing
grievances or drop his pending lawsuits. (Doc. No. 1 at 3.) Plaintiff also alleges
that on the same day, after the assault, he told physician’s assistant Alama that he
urgently needed a medical assessment because he was violently assaulted. (Id. at
4.) Plaintiff alleges that Defendant Alama refused to provide him with a medical
assessment and was therefore deliberately indifferent to his serious medical needs.
(Id.) Plaintiff’s last allegation is that Warden Ebbert has failed to adequately train
his staff which has resulted in the April 1, 2016 assault and untreated injuries. (Id.
at 5.) Plaintiff provides that he is in “imminent danger” and seeks two hundred
million dollars. (Id. at 6.)
After two administrative Orders were sent to Plaintiff directing him to either
pay the filing fee or provide an application to proceed in forma pauperis (Doc.
Nos. 4, 8), on September 8, 2017, Plaintiff filed a motion for leave to proceed in
forma pauperis. (Doc. No. 9.) In that motion, Plaintiff admits to having filed three
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.) However, Plaintiff claims that he is in imminent danger of serious
physical injury. (Id.) In support of that claim, Plaintiff states that he was assaulted
on April 1, 2016 and denied medical treatment and he has been constantly
Upon screening and review of Plaintiff’s complaint and prior litigation
history, the Court observes that Plaintiff is subject to the three-strikes provision of
28 U.S.C. § 1915(g), of the Prison Litigation Reform Act (“PLRA”), unless he can
show that he is under imminent danger of serious physical injury. The PLRA
includes a “three strikes” rule, “which limits a prisoner’s ability to proceed [in
forma pauperis] if the prisoner abuses the judicial system by filing frivolous
actions.” Abdul-Akbar v. McKelvie, 239 F.3d 307, 312 (3d Cir. 2001) (en banc);
28 U.S.C. § 1915(g). It states as follows:
In no event shall a prisoner bring a civil action or appeal a
judgment in a civil action or proceeding under this section if the
prisoner has, on 3 or more prior occasions, while incarcerated or
detained in any facility, brought an action or appeal in a court of
the United States that was dismissed on the grounds that it is
frivolous, malicious, or fails to state a claim upon which relief may
be granted, unless the prisoner is under imminent danger of serious
28 U.S.C. § 1915(g).
Plaintiff is a prolific litigant and is no stranger to being denied in forma
pauperis status. The Court’s investigation of Plaintiff’s litigation history reveals
that Plaintiff is subject to the “three strikes” bar, a fact that has been established in
prior civil proceedings. See Brown v. Dees, No. 1:17-CV-25, 2016 WL 7159235
(M.D. Pa. Dec. 8, 2016) (dismissing under § 1915(g)’s three-strikes bar).
Accordingly, Plaintiff has reached the statutory limit as set forth in 28 U.S.C. §
1915(g) and is precluded from seeking in forma pauperis status unless he can
establish that he was “under imminent danger of serious physical injury” at the
time the complaint was filed. See 28 U.S.C. § 1915(g).
The PLRA, in an effort to halt the filing of meritless inmate litigation,
enacted what is commonly referred to as the “three strikes” provision. 28 U.S.C. §
1915(g). However, “[t]he Act provides a limited exception to [the three strikes]
rule when a prisoner is in ‘imminent danger of serious physical injury,’ which
operates as a ‘safety valve’ to ensure that a prisoner is not subject to serious injury
due to his inability to pay a filing fee.” Brown v. Lyons, 977 F. Supp. 2d 475, 481
(E.D. Pa. 2013). Allegations of imminent danger must be evaluated in accordance
with the liberal pleading standard applicable to pro se litigants, although the Court
need not credit “fantastic or delusional” allegations. Gibbs v. Cross, 160 F.3d 962,
966-67 (3d Cir. 1998). Moreover, “a prisoner claiming that she is in imminent
danger of serious physical harm must make specific and credible allegations to that
effect.” Ball v. Famiglio, 726 F.3d 448, 470 (3d Cir. 2013) (internal quotation
marks and alterations omitted). “When considering whether imminent danger of
physical injury has been alleged, courts may reject ‘vague’ or ‘conclusory’
allegations as insufficient to provide a basis for IFP status.” Brown, 977 F. Supp.
2d at 483 (citing Famiglio, 726 F.3d at 468).
“[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, 239 F.3d at 312. “ ‘Imminent’ dangers are those dangers which are
about to occur at any moment or are impending.” Id. at 315. “Someone whose
danger has passed cannot reasonably be described as someone who ‘is’ in danger,
nor can that past danger reasonably be described as ‘imminent.’ ” Id. at 313.
Moreover, “even if an alleged harm may in fact be ‘impending,’ it does not satisfy
the exception if it does not threaten to cause ‘serious physical injury.’ ” Brown,
977 F. Supp. 2d at 483 (citing 28 U.S.C. § 1915(g)).
In reviewing both the assertions set forth in Plaintiff’s complaint and motion
to proceed in forma pauperis, the Court concludes that Plaintiff’s allegations are
speculative and do not satisfy the threshold criterion of the imminent danger
exception of 28 U.S.C. § 1915(g). Indeed, the alleged incident Plaintiff now
complains of in his instant complaint that he filed on July 25, 2017, occurred over
a year and four months ago, i.e., April 1, 2016. (Doc. No. 1, 9.) The filing of a
complaint nearly a year and a half after the alleged incident occurred cannot be
construed as “imminent” as contemplated by the statute or case law. See AbdulAkbar, 239 F.3d at 312. Moreover, it is the Plaintiff’s burden to make specific and
credible allegations of “imminent danger,” Ball, 726 F.3d at 470, and “when
considering whether imminent danger of physical injury has been alleged, courts
may reject ‘vague’ or ‘conclusory’ allegations as insufficient to provide a basis for
IFP status.” Brown, 977 F. Supp. 2d at 483. Plaintiff’s vague and conclusory
allegation that he has “been constantly threatened by the defendants” simply fails
to provide the sufficiency needed to satisfy the threshold criterion of the imminent
danger exception of 28 U.S.C. § 1915(g).
Accordingly, the Court will deny Plaintiff’s motion to proceed in forma
pauperis (Doc. No. 9) pursuant to 28 U.S.C. § 1915(g), dismiss the complaint
without prejudice and direct the Clerk of Court to close this action. See Dupree v.
Palmer, 284 F.3d 1234, 1236 (11th Cir. 2002) (“the proper procedure is for the
district court to dismiss the complaint without prejudice when it denies the prisoner
leave to proceed in forma pauperis pursuant to the three strikes provision of §
1915(g). The prisoner cannot simply pay the filing fee after being denied in forma
pauperis. He must pay the filing fee at the time he initiates the suit.”) (emphasis in
For the reasons set forth above, Plaintiff’s motion to proceed in forma
pauperis (Doc. No. 9) will be denied pursuant to the three-strikes provision of 28
U.S.C. § 1915(g), and the complaint will be dismissed without prejudice . An
appropriate order follows.
s/Sylvia H. Rambo
SYLVIA H. RAMBO
United States District Judge
Dated: September 28, 2017
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