Brown v. Holtzapple et al

Filing 5

MEMORANDUM (Order to follow as separate docket entry)Since the dismissal of Since the dismissal of Brown's action being entered under Section 1915(g) and he is barred from proceeding in forma pauperis, Plaintiff's in forma pauperis application (Doc.2) and the Adminstrative Order issued in this matter on April 15, 2015, (Doc.4) will be vacated. An appropriate Order will enter.Signed by Honorable Richard P. Conaboy on 4/20/15. (cc)

IN THE UNITED STAT ES DISTRI CT COURT

FOR THE

MIDDLE DISTRICT OF PENNSYLVANIA

DERRICK LAKEITH BROWN ,
Plaintiff ,
CIVIL NO.

3 :CV-15-711

v.

(Judge Conab oy)
MATT EDINGER , et al.,

FILED
SCRANTON

Defendants ,

AP R 2 0 2015

MEMORANDUM

Background
PER __~~~~__~_

This is the latest in a l ong series of Q£Q se civil

DEPUTY CLERK

actions filed by Derrick Lakeith Brown regarding his
incarceration at t he United States Penitentiary, Lew isburg,
In this matter Brown raises

Pennsylvania (USP - Lewisburg).

civi l rig hts claims and seeks relief pursuant to the Federal
Tort Claims Act

(FTCA) .

Accompanying the Comp laint is an

application requesting lea ve to proceed in forma pauperis .
There are fi fty -eig h t

(58)

Defendants named in the

Comp laint, including the United States of America;

Federal

Bureau of Investigation; American Federation of Government
Employees; Council of Pris ons Locals
the Federal Bureau of Prisons

(BOP)

(the union); offi cials of
and multiple USP -Lewisburg

employees including administrators , cor re ctional officers , as
well as members of the prison ' s medical and mental heal th
staffs .

See Doc . 1 , pp . 1-3 .

According to the Complaint ,
1

while held in the USP-Lewisburg Special Management Unit
Plaintiff was assaulted and sexually abus
Extraction Team.l

by prison

This attack purportedly occurred on April 11,

id. at p.

2013.

(SMU)

4.

Following this alleged incident,

Brown

additionally contends that he was denied needed medical care
and that the alleged
covered up by

sconduct, although investigated, was

son officials.

The Complaint seeks compensatory and punitive damages as
well as injunctive relief. Plaintiff also all

requests that this matter not be

danger of imminent harm
di

s that he is in

ssed pursuant to the screening provisions of 28 U.S.C. §

1915 (g).

See

Discussion
28 U.S.C. § 1915(g) provides

by a prisoner

a

ral c

1 action

pauperis is barred if he or

ceeding in

she:
has, on 3 or more prior occasions, while
incarcerated or detained in any facility,
brought an action or appeal
a court of
the United States that was di
ssed on the
grounds that it is frivolous, malicious, or
ls to state a claim upon which relief
may be grant
,unless the prisoner is
under imminent danger of serious physical
injury.

Plaintiff cont
that while being escorted by members

of the prison's Extraction team, a correctional officer

allegedly shoved his fingers into Brown's rectun.
id. at

p. 6.
Plaintiff adds t
he p
ously filed sexual

harassment claims against the team nembers.

2

above, PIa

As

iff has an extensive history of

filing frivolous lawsuits in
courts.

is district as well as in other

For instance, while incarcerated, Brown previously
following

initiated

I actions which were di

ted States

frivolous by the

ssed as

strict Court for the Western

District of Tennessee:

No. 2:01-2868
r 28 U.S.C. §

(Nov. 13, 2001) (sua sponte dismissal

1915 (e) (2) (B) (ii) and (iii)); Brown v. Shelby County, et al.,
No. 2:02-2365 (June 19, 2002)

(dismissal on grounds that

§

1983

complaint is frivolous); Brown v. Shelby County, et al., No.
2: 02-2366 (June 19, 2002) (sua
§

1915(e) (2) (B)
r

(June 27, 2002) (dismissal with observation
dismissals of cases as

that Brown has t
is subject to

aintiff's transfer to US

C

ssed under

§

il No. 3:CV-10-200 (M.D.

Brown v. Lappin,
2009) (Vanas
09-1742,

,

sburg, he filed

s district court which were

e civil rights actions in

likewise di

ous and thus

1915 (g) ) .

§

Following
multi

(iii)); and Brown v. Nurse Brown, et

(ii)

No. 2:02-2368

dismissal under 28 U.S.C.

1915(g).
Pa. Jan. 29, 2010) (Conaboy,

3:CV-09-1732,

(M.D.

J.);

Pa. Nov. 10,
Civil No. 3:CV­

J.);

(M.D. Pa. Nov. 17, 2009) (Vanaskie, J.); Brown v.

Lappin et al., Civil No. 3:CV-09-1898,
2009); (Vanas

,

J.);

(M.D. Pa. Nov. 16,
al. ,

and
3

Civil No. 3:CV-09-2153,

(M.D. Pa. Nov. 16, 2009) (Vanaskie, J.).

The unconstitutional conduct alleged in Brown's latest
action does not place this inmate in danger of imminent
"serious physical
on August 10, 2012.

jury" at the time his Complaint was fil
Abdul-Akbar v. McKelvie, 239 F.3d 307,

312 (3d Cir. 2001); McCarthy v. Warden, USP-Allenwood, 2007 WL
2071891 *2

(M.D. Pa. July 18, 2007) (Ca

II, J.)

(the danger

of serious physical injury must be about to occur at any moment
or impending at the time the complaint was filed, not at the
time of the alleged incident).
primarily centers upon a Ap
tran

ired approx

of this Complaint. 2

On the contrary, this action

1 11, 2013 incident which

tely two (2) years prior to the initiation
Since there is no indication that Plaintiff

was subjected to any subsequent physical staff abuse dur

the

intervening two year period between the April 11, 2013 incident
and the init

ion of this action he was not placed at risk of
was filed.

serious physical injury when this act

It is also noted that the three strikes provisions of §
1915(g) have been applied to FTCA claims.

See McCarthy v.

Warden, USP Allenwood, 2007 WL 2071891 *1-2 (M.D. Pa. July 18,

2007) i Crooker v. United States, 2011 WL 1375613 *2 (D. Mass.
il 12, 2011); Bowker v. United States, 2006 WL 2990519 *3-4
(N.D. Ohio Oct. 18, 2006). Pursuant to the above discussion,
this action will be dismissed under

§

1915(g).

It is also noted that there is no factual support for
the claims against many of the named Defendants.
4

Since the dismissal of Brown's action is
under

§

1915(g) and he is

rred from proceeding

pauperis, Plaintiff's
and the Administrat

Order issued in this matter on April 15,
An appropriate Order will

enter.

RICHARD P. CONABOY
United States District Jud

~7A
DATED: APRIL

J&,

forma

pauperis application (Doc. 2)

vacated.

2015 (Doc. 4) will

ing entered

2015

5