TABANSI v. WOLFF et al

Filing 32

ORDER: (1) The Report and Recommendation of Magistrate Judge Martin C. Carlson dated August 28, 2015 (Doc. 25 ) is ADOPTED; (2) Plaintiffs requests to proceed in forma pauperis (Docs. 4 and 16 ) are DENIED; and, Plaintiffs Motion regarding immine nt danger of serious bodily physical harm (Doc. 11 ) is DENIED; (3) The Complaint is DISMISSED pursuant to 28 U.S.C. §1915(g). Additionally, the Complaint is DISMISSED for failure to state a claim upon which relief may be granted; and, (4) The Clerk of Court is directed to CLOSE this case and to FORWARD a copy of this Order to the Magistrate Judge. Signed by Honorable Edwin M. Kosik on 9/23/2015. (emksec, )

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF PENNSYLVANIA
__________________________________
SEHU KESSA SAA TABANSI, a/k/a
ALFONSO PERCY PEW,

:
:
:
Plaintiff,
:
:
:
v.
:
:
TOM WOLF, et al.,
:
:
Defendants.
:
__________________________________

CIVIL ACTION NO. 3:15-CV-676
(Judge Kosik)

ORDER
AND NOW, THIS 23rd DAY OF SEPTEMBER, 2015, IT APPEARING TO THE
COURT THAT:
(1) Plaintiff, Sehu Kessa Saa Tabansi, a/k/a Alfonso Percy Pew, an inmate
confined at the State Correctional Institution Forest, Marienville, Pennsylvania, filed
the instant civil rights action pursuant to 42 U.S.C. § 1983 pro se, on March 9, 2015,
in the United States District Court for the Western District of Pennsylvania. The
action was transferred to this court on April 6, 20151. Plaintiff’s Complaint is based
on problems Plaintiff encountered in the Special Management Unit with the diet he
was provided and its effect on his health. Named as Defendants are Tom Wolf, the
Governor of Pennsylvania, and John Wetzel, the Secretary of Pennsylvania
Department of Corrections;
(2) The action was referred to Magistrate Judge Martin C. Carlson for Report
and Recommendation;
(3) On August 28, 2015, the Magistrate Judge issued a Report and
Recommendation (Doc. 25), wherein he recommended that the Court deny Plaintiff’s
Motions for Leave to Proceed in forma pauperis (Docs. 4 and 16), deny his Motion

1

The allegations in the Complaint occurred while Plaintiff was an inmate at SCI-Camp Hill,
Pennsylvania.

concerning imminent danger of serious bodily physical harm (Doc. 11), and decline to
permit him to file his Complaint pursuant to 28 U.S.C. § 1915(g); or alternatively,
dismiss the Complaint for failure to state a claim upon which relief may be granted;
(4) Specifically, after reviewing the law surrounding 28 U.S.C. § 1915(g), the
Magistrate Judge found that Plaintiff has not sufficiently alleged or shown that he is in
imminent danger of serious bodily harm, as required under 28 U.S.C. § 1915(g).
Moreover, the Magistrate Judge found that the Complaint on its face fails to state a
claim upon which relief may be granted with respect to the Governor of Pennsylvania
and the Secretary of the Department of Corrections;
(5) On September 11, 2015, Plaintiff filed Objections (Doc. 29) to the Report
and Recommendation and a Brief in Support thereof (Doc. 30);
(6) In his Objections, Plaintiff does not dispute that he falls within the Three
Strikes provision of 28 U.S.C. §1915(g), but challenges the Magistrate Judge’s
conclusion that Plaintiff has not established that he is under imminent danger of
serious physical injury citing his diet and hypertension. Plaintiff also objects to the
Magistrate Judge’s finding that he has not set forth supervisory liability on behalf of
the Governor and Secretary of the Department of Corrections;
AND, IT FURTHER APPEARING THAT:
(7) When objections are filed to a Report and Recommendation of a
Magistrate Judge, we must make a de novo determination of those portions of the
Report to which objections are made. 28 U.S.C. §636(b)(1)(C); see Sample v.
Diecks, 885 F.2d 1099, 1106 n.3 (3d Cir. 1989). In doing so, we may accept, reject
or modify, in whole or in part, the findings or recommendations made by the
Magistrate Judge. 28 U.S.C. §636(b)(1); Local Rule 72.3. Although our review is de
novo, we are permitted by statute to rely upon the Magistrate Judge’s proposed
recommendations to the extent we, in the exercise of sound discretion, deem proper.
United States v. Raddatz, 447 U.S. 667, 676 (1980); Goney v. Clark, 749 F.2d 5, 7
(3d Cir. 1984);

(8) After reviewing the Magistrate Judge’s Report and Recommendation and
the Plaintiff’s Objections and Brief, we find that the Magistrate Judge is correct in
concluding that the Plaintiff’s allegations do not fall within the ambit of imminent
danger of serious physical injury; and, that the Complaint fails to state a claim
against the Governor and the Secretary of the Department of Corrections;
(9)

Imminent dangers are those dangers which are about to occur at any

moment or are impending. Abdul-Akbar v. McKelvie. 239 F.3d 307, 315 (3d Cir.
2001). Practices that “may prove detrimental ... over time” also do not represent
imminent dangers as the harm is not “about to occur at any moment.” Ball v.
Famiglio, 726 F.3d 448, 468 (3d Cir. 2013)(quoting Abdul-Akbar, 239 F.3d at
315)(internal quotation marks omitted). Further, 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.” 28 U.S.C. §1915(g). Vague or conclusory allegations are
insufficient to meet this standard. See Ball, 726 F.3d at 468;
(10)

Moreover, as to respondent superior or supervisory liability, personal

involvement must be alleged and is only present where the supervisor directed the
actions of supervisees or actually knew of the actions and acquiesced in them. Rode
v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988);
(11)

In the instant action, the basis of Plaintiff’s claims deal with the diet he

was served in the SMU and its effect on his health. Plaintiff attempts to set forth the
facts in such a way as to come within the “imminent harm” exception to be permitted
to proceed in this action, even though he is subject to the Three Strikes Bar. There
are no allegations in the Complaint demonstrating “impending serious physical
injury”. Any such claim regarding the impact of the dietary situation and its effect on
his health, in particular, hypertension, is speculative at best. Clearly, such
allegations do not suggest imminent, impending harm to Plaintiff. Additionally, the
Magistrate Judge is correct in finding that Plaintiff has failed to allege supervisory
liability on the part of Defendants.

ACCORDINGLY, IT IS HEREBY ORDERED THAT:
(1) The Report and Recommendation of Magistrate Judge Martin C. Carlson
dated August 28, 2015 (Doc. 25) is ADOPTED;
(2) Plaintiff’s requests to proceed in forma pauperis (Docs. 4 and 16) are
DENIED; and, Plaintiff’s Motion regarding imminent danger of serious bodily physical
harm (Doc. 11) is DENIED;
(3) The Complaint is DISMISSED pursuant to 28 U.S.C. §1915(g).
Additionally, the Complaint is DISMISSED for failure to state a claim upon which
relief may be granted; and,
(4) The Clerk of Court is directed to CLOSE this case and to FORWARD a
copy of this Order to the Magistrate Judge.

s/Edwin M. Kosik
Edwin M. Kosik
United States District Judge