Wolters v. United States Of America

Filing 24

MEMORANDUM (Order to follow as separate docket entry) Accordingly, the unopposed request for relief under § 1915(g) will be granted since Wolters is barred from proceedingin forma pauperis. Furthermore, Plaintiff's in forma pauperis applica tion will be denied and the Administrative Order issuedin this matter on October 29, 2015 (Doc. 11) will be vacated. Inaddition, this matter will be administratively closed. IfPlaintiff pays the required filing fee within thirty days of thedate of this Memorandum and Order this matter will be reopened.An appropriate Order will enter.Signed by Honorable Richard P. Conaboy on 4/14/16. (cc)

IN THE UNITED STATES DISTRIC T COURT

FOR THE

MIDDLE DISTRICT OF PENNSYLVANIA

ANDREW WOLTERS,

Plaintiff
CIVIL NO . 3 : CV-15 - l580

v.

(Judge Conaboy)
UNITED STATES OF AMERICA ,
De fendant

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2016

MEMORANDUM

Background

Andrew Wolters , an inmate presen tly confined at the United
States Penitentiary , Lewisburg,

Pennsylvania (USP - Lewisburg)

filed

this Federal Tort Claims Act complaint. Named as sole De fendant is
the United States of America.

Plaintiff alleges that he was

physically and sexua lly assaulted and subjected to excessive
amounts of chem i ca l agents at USP - Lewisburg and was given negligent
medical care at USP - Allenwood and USP-Lewisburg .
By Order dated October 29 , 2015 ,

Plaintiff' s motions to

proceed i n forma pauperis were previously construed as a motion to
proceed without full prepayment of fees and costs and the motions
"Jere granted .

See Doc. 10.

The Order also authorized service of

the Plaintiff ' s Complaint on the Defendants named therein .
Presen t ly pending is a motion f i led by the Defendant
seeking to remove Plaintiff's in forma pauperis status and asking

1

that he be required to pay the full fil
According to the motion,

intiff's in

fee.

1

See Doc. 22.

pauperis status

should be revoked immediately pursuant to the three strikes
provision of 28 U.S.C. § 1915(g) since the Complaint does not
include any allegations that Wolters is in imminent danger of
serious physical injury.

The unopposed motion is

for

consideration.
Discussion

28 U.S.C.

§

1915(g) provides that a federal civil action by

a prisoner proceeding in

pauperis is barred if he or she:

has, on 3 or more prior occasions, while
rcerated or
ined 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
Is to state a claim upon
which reI f may be granted, unless the
isoner is under imminent danger of
serious physical
jury.

Strikes under

§

1915 (g) are generally limited to

smissals based

upon determinations of frivolity, maliciousness, and failure to
state a claim.
limit
was bas

s Court recognizes that there may be some

circumstances where if the granting of a summary judgment
upon a determination that the complaint had failed to

state a claim, said dismissal could constitute a strike for

A review of the docket indicates that Wolters has not yet
made any payment towards the filing fee.
2

purposes of § 1915(g).
2463 *7-8

Boreland v. Vaughn, 2000 U.S. Dist.

(E.D. Pa. March 7, 2000)

It is also noted that "[aJ dismissal does not qualify as a
strike

unless and until a 1

or her appel

rights."

igant has exhausted or waived his

Lopez v. U.S. Dept. of Justice,

Fed. Appx. 218 (3d Cir. 2007). In
464

(3d

228

726 F.3d 448,

r. 2013) the Third Circuit Court of Appeals recognized

that a dismissal by a court of appeals for one of the grounds
enumerated in

§

1915(g) counts a strike in addition to a strike

accumulated as a result of the lower court's decision in the same
case.
The Defendant asserts among the multiple prisoner lawsuits
filed by Plaintiff, two of his actions and related appeals to the
Court of Appeals were dismissed for failure to state claim or as
frivolous: Wolters v. Hunter, et al., Civil No. 07-CV-2290 (D.
Colo. 2009) and
837

No. 08-CV­

(W.O. La 2010).

Copies of the relevant docket sheets have been

submitted by the Defendant.

Doc. 23-1.

In addition, the Defendant notes that two district courts
have recognized that Plaintiff has accumulated three strikes for
the purposes of

§

1915(g).

See Wolters v. Holder, et al., No.

7:12-CV-56 (W.O. Va.);

, No. 7:12-CV-96

(W.O. Va) and Wolters v. Bolulder County District Attorney, No.
1:15-CV-2283 (D. Colo).

Based upon the undisputed evidence

3

submitted by the Defendant, it has been s

ficiently established

that Wolters has accumulated three strikes.
The imminent danger of se

ous physical harm exc

ion

requires an inquiry into whether the unconstitutional conduct
aced the inmate in danger of imminent "serious physical

alleged

injury" at the t
~~~~,

the Complaint was filed.

See Abdul-Akbar v.

239 F.3d 307, 312 (3d Cir. 2001); McCarthy v. Warden,

USP-Allenwood, 2007 WL 2071891 *2
2007) (Caldwell, J.)

(M.D. Pa. July 18,

(the danger of serious physical inj u

about to occur at any moment or impendi
was filed, not at t

t

must be

at the time the complaint

of the alleged incident).
st 10, 2015 and Wolters' action

The Complaint is dated

will be deemed filed as of said date. 2

Houston v. Lack,

U.S. 266 (1988) (a prisoner's action is deemed fi

487

at the t

is given to prison officials for mailing to the Court.

it

The

Complaint raises claims pertaining to events which purportedly
transpired in 2012 13.
da

As noted in Abdul-Akbar, the imminent

r exception attaches at the time the Complaint is filed.
The unconstitutional conduct al

not place this inmate in danger of
injury" at the t h i s Compla

in Wolter's action does
nent "se

ous physical

t was filed on August 10, 2015.

Abdul-Akbar v. McKelvie, 239 F.3d 307, 312 (3d Cir. 2001);

2

The Complaint was docketed in this Court on

2015.
4

st

13,

McCarthy v. Warden, USP-Allenwood, 2007 WL 2071891 *2
July 18, 2007) (Caldwell, J.)

(M.D.

Pa.

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).

On

the contrary, this matter was not initiated until approximately two
years after the challenged conduct occurred.
Accordingly,

unopposed request for relief under

§

1915(g) will be granted since Wolters is barred from proceeding
pauperis.

Furthermore, Plaintiff's in forma pauperis

applications will be denied and

the Administrat

in this matter on October 29, 2015

Order issued

(Doc. 11) will be vacated.

addition, this matter will be administratively closed.

In

If

Plaintiff pays the required filing fee within thirty days of the

date of this Memorandum and Order this matter will be reopened.

An appropriate Order will enter.

RICHARD P. CONABOY
United States District Judg

DATED: APRIL

11,

2016

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