Brown v. Edinger et al
MEMORANDUM re Complaint filed by Joseph A. Brown 1 (Order to follow as separate docket entry)Signed by Honorable Sylvia H. Rambo on 12/4/17. (ma)
UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
JOSEPH A. BROWN,
MATT EDINGER, 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
four employees and Warden David Ebbert of the Lewisburg United States
Penitentiary. (Doc. Nos. 1, 2, and 3.) Plaintiff has also filed two motions for leave
to proceed in forma pauperis (Doc. Nos. 6 and 8) along with a prison authorization
form (Doc. No. 9.) The Court will now screen the complaint prior to service
pursuant to its obligations under 28 U.S.C. § 1915A and § 1915(e)(2).
The allegations contained in Plaintiff’s complaint (Doc. No. 1), motion to
file Bivens/Supplement” (Doc. No. 2), motion to “Add & Amend Supplement
Complaint” (Doc. No. 3), all relate to instances surrounding a February 4, 2017,
incident while Plaintiff was incarcerated at USP-Lewisburg. (Doc. No. 3 at 5.)
Plaintiff alleges that Defendants systematically retaliated against him for filing a
separate federal lawsuit. (Doc. No. 1 at 3.) Moreover, Plaintiff alleges that these
Defendants all conspired with one another to retaliate against him for filing
lawsuits and grievances. (Id.) For instance, because of these filings, Plaintiff
alleges that Defendants conspired with one another to cause Plaintiff to suffer a
very serious and traumatic eye and facial injury and numerous fractures when
Defendants staged an attack/fight involving Plaintiff and his assigned cellmate that
they knew he was incompatible with. (Doc. No. 3 at 4.) Plaintiff and his cellmate
engaged in a violent fight and Plaintiff alleges that Defendants failed to intervene.
(Id. at 4.) As a result, Plaintiff alleges that he suffered numerous traumatic head,
eye, and facial fractures. Plaintiff alleges that he “was in imminent danger” and
seeks, among other things, three hundred million dollars, as well as a preliminary
injunction and temporary restraining order against Defendants. (Id. at 15.)
Plaintiff is no longer housed at USP-Lewisburg, but rather, is now currently
incarcerated at USP-Canaan.
In Plaintiff’s present motion for leave to proceed in forma pauperis (Doc.
No. 8), he provides that he “was in serious imminent danger from retaliating staff
who has repeatedly retaliated upon [him] on multiple occasions that has caused
traumatic physical injuries.” (Doc. No. 8 at 2) (emphasis added).
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) (enumerating Brown’s prior cases which were dismissed
under 28 U.S.C. § 1915(e)(2)(B)(ii)). 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.
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 the assertions set forth in Plaintiff’s complaint (Doc. No. 1),
motion to file Bivens/Supplement” (Doc. No. 2), motion to “Add & Amend
Supplement Complaint” (Doc. No. 3), and motions to proceed in forma pauperis
(Doc. No. 6 and 8), the Court concludes that Plaintiff does 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
October 13, 2017, occurred nearly eight months ago, i.e., February 4, 2017. (Doc.
Nos. 1, 2, and 3.) The filing of a complaint nearly eight months after the alleged
incident occurred cannot be construed as “imminent” as contemplated by the
statute or case law. See Abdul-Akbar, 239 F.3d at 312.
Moreover, Plaintiff does not allege that he currently is under imminent
danger of serious physical injury, as he explains in his motion for in forma
pauperis that he “was in serious imminent danger….” (Doc. No. 8) (emphasis
added). It is apparent that Plaintiff’s allegations of imminent danger relate to when
he believed he was in imminent danger while incarcerated at USP-Lewisburg.
However, the Court notes that Plaintiff is no longer interned at USP-Lewisburg,
but rather, is currently incarcerated at USP-Canaan. In fact, at the time of filing
this complaint, Plaintiff was located at USP-Canaan. Accordingly, he is unable to
invoke the “imminent danger” exception as it relates to USP-Lewisburg because he
was no longer interned there. See Abdul-Akbar, 239 F.3d at 312 (“[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.”). As further explained by
the Abdul-Akbar Court:
‘[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.
As set forth above, this Court’s investigation of Plaintiff’s litigation history
reveals that Plaintiff is subject to the “three strikes” bar. Additionally, Plaintiff
does not claim that he is in “imminenet” danger of serious physical injury and
there are no facts set forth in Plaintiff’s instant filings that he was in such danger at
the time he filed the complaint on October 13, 2017. Consequently, the Court will
deny Plaintiff’s motions to proceed in forma pauperis (Doc. Nos. 6 and 8) 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 original).
For the reasons set forth above, Plaintiff’s motions to proceed in forma
pauperis (Doc. Nos. 6 and 8) 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: December 4, 2017
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