Percy Pew v. Jones et al

Filing 150

MEMORANDUM OPINION AND ORDER - IT IS HEREBY ORDERED that 140 Defendants' Motion for Reconsideration is granted; 146 Plaintiff's Motion for Leave to File Sur-Reply is granted; 147 Plaintiff's Sur-Reply is accepted as filed; Plaint iff's leave to proceed ifp is REVOKED; 14 Plaintiff's Motion in Opposition to Defendants' Motion for Reconsideration is denied as moot; 10 Administrative Order is VACATED; Clerk directed to forward a copy of this order to the Super intendent; Plaintiff shall pay the remaining filing fee; failure to pay the required filing fee will result int he dismissal of this action for nonpayment of fees. (See Order for further/complete details.) Signed by Honorable Matthew W. Brann on 10/16/2020. (lg)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
No. 3:15-CV-01611

ALFONSO PERCY PEW,

(Judge Brann)

Plaintiff,
v.
COL. E.A. JONES, et al.,
Defendants.

MEMORANDUM OPINION AND ORDER
OCTOBER 16, 2020
Presently before the Court is Defendants’ motion for reconsideration of the
Court’s Order of October 27, 2015, which conditionally granted Plaintiff leave to
proceed in forma pauperis in this civil action.1 That Order acknowledged that
Plaintiff had acquired at least three prior qualifying dismissals that would preclude
him from proceeding in forma pauperis, but conditionally granted the motion based
on Plaintiff’s allegations of food tampering or denial while he was incarcerated at
SMU Camp Hill.2 The October 27, 2015 Order also specifically provided that it was
“subject to any subsequent request by the defendants to revoke leave to proceed in
forma pauperis asserting that the plaintiff had not sufficiently alleged or shown that
he is in imminent danger of serious bodily harm.”3 Notably, at the time that

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2
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Docs. 9 (order), 140 (motion for reconsideration).
See id. at 2-3.
Id. at 3.

Plaintiff’s IFP application was conditionally granted, Defendants had not yet been
served and therefore did not have an opportunity to oppose the motion.
Defendants now move for the October 27, 2015 Order to be reconsidered as
they allege Plaintiff has not demonstrated that he is in danger of such imminent
physical harm. Plaintiff has opposed the motion, arguing that there is no legal basis
for reconsideration or revoking his IFP status.4
Generally, a court may grant a motion for reconsideration if the moving party
shows one of the following: (1) an intervening change in the controlling law; (2) the
availability of new evidence that was not available when the court issued its order;
or (3) the need to correct a clear error of law or fact or to prevent manifest injustice.5
Relevant here, however, the Court always possesses the authority to revise its
interlocutory orders “when it is consonant with justice to do so.”6
Reconsideration here is appropriate because the grant of Plaintiff’s IFP
application was interlocutory and conditioned on Defendants’ having an opportunity
to oppose the application. The Court now has the benefit of Defendant’s opposition,
which demonstrates that Plaintiff was under no threat of imminent serious physical
injury.

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5

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See Docs. 142, 143.
Johnson v. Diamond State Port Corp., 50 F. App’x 554, 560 (3d Cir. 2002) (quoting Max’s
Seafood Café v. Quinteros, 176 F.3d 669, 677 (3d Cir. 1999)).
United States v. Jerry, 487 F.2d 600, 605 (3d Cir. 1973). See also Alea N. Am. Ins. Co. v.
Salem Masonry Co., 301 F. App’x 119, 121 (3d Cir. 2008) (quoting Jerry, 487 F.2d at 605).
2

“To help staunch a ‘flood of nonmeritorious’ prisoner litigation, the Prison
Litigation Reform Act of 1995 (PLRA) established what has become known as the
three-strikes rule.”7 The three strikes rule “generally prevents a prisoner from
bringing suit in forma pauperis (IFP)—that is, without first paying the filing fee—
if he has had three or more prior suits ‘dismissed on the grounds that [they were]
frivolous, malicious, or fail[ed] to state a claim upon which relief may be granted.’”8
In light of Plaintiff’s three prior dismissals for failure to state a claim, or
frivolity, Plaintiff may not proceed in forma pauperis unless he can demonstrate that
he “is under imminent danger of serious physical injury.”9 Defendants argue that
the assessment of imminent injury should occur when an amended complaint is filed
rather when the original complaint was filed, because an amended complaint renders
the complaint a legal nullity.10 A review of the amended complaint and docket
confirms that although Plaintiff complains of past maltreatment while incarcerated
at SMU Camp Hill, Plaintiff is no longer housed there and, as far as the Court can
discern, is under no threat of imminent “serious physical injury.” Plaintiff was also
not under any threat of such harm at the time he filed the amended complaint.

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Lomax v. Ortiz-Marquez, 140 S. Ct. 1721, 1723 (2020) (citing Jones v. Bock, 549 U.S. 199,
203 (2007)).
Id. (citing 28 U.S.C. § 1915(g)).
28 U.S.C. § 1915(g). See also Abdul-Akbar v. McKelvie, 239 F.3d 307, 312 (3d Cir. 2001)
(en banc) (finding that the plaintiff must allege facts showing that he was in imminent danger
at the time the complaint was filed and that allegations that he faced imminent danger in the
past are insufficient to trigger the exception to § 1915(g)).
See Doc. 145 (citing DaimlerChrysler v. Ashinazi, 152 F. Supp. 2d (E.D. Pa. 2001)).
3

Plaintiff argues that the Court should assess whether he was under the threat
of injury at the time his initial complaint was filed.

Plaintiff’s argument is

unavailing.
When Plaintiff filed his complaint on August 18, 2015, he failed to include
both the filing fee and an application to proceed in forma pauperis.11 Plaintiff did
not file an application to proceed in forma pauperis until October 27, 2015, at which
point he also informed the Court that he had since been transferred to SCI Forest, far
from SMU Camp Hill where the relevant Defendants are employed and any harm
occurred.12 This distinction is important, because the Court could not consider
whether Plaintiff is entitled to proceed in forma pauperis until it had received the
appropriate application. The Court could only evaluate Plaintiff’s application and
any threat of imminent serious physical injury when it received the application. That
date was October 27, 2015. At this point, Plaintiff had already been transferred from
SMU Camp Hill, and no threat therefore existed. Other courts to have considered
this circumstance have determined that any risk of injury at a prison facility is
eliminated after the plaintiff is later transferred to another facility.13

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See Doc. 1.
See Docs. 4 (change of address), 5 (motion for leave to proceed in forma pauperis).
See, e.g., McGore v. Lutz, No. 09-cv-13031, 2009 WL 2488101, at *2 (E.D. Mich., Aug. 11,
2009) (“The events giving rise to Plaintiff's complaint, i.e., the alleged failure to change his
cell following a fellow inmate's threats in 2007 and the alleged verbal harassment in 2008, do
not pose an imminent danger of serious physical injury, particularly given that Plaintiff has
been transferred to another prison. Plaintiff has thus failed to show that he falls within the
exception to the three-strikes rule.”); Gamble v. Maynard, No. 06-cv-1543, 2008 WL
4

More fundamentally however, Plaintiff has failed to allege the imminent
nature of “serious physical injury,” whether it be considered at the time of the filing
of the complaint, the filing of the amended complaint, or the filing of the application
to proceed in forma pauperis. Although Plaintiff may well have been in imminent
danger of missing a meal or receiving a less than satisfactory meal, he fails to allege
that he was in imminent danger of a “serious physical injury” from those actions.
At best, Plaintiff alleges that while he was incarcerated at SMU Camp Hill,
certain staff members would not provide him with meals, tamper with his meals, or
provide him “food loaf,” which the Court presumes is a less appetizing alternative
to the regular meals served.14

Even accepting these allegations as true and

construing them in the light most favorable to Plaintiff, these allegations simply do
not establish a “serious physical injury” or the threat of one.15 There is no allegation

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150364, at *5 (N.D.N.Y. Jan. 14, 2008) (“While plaintiff's complaint intimates that the
matter was not an isolated incident [of assault by correctional officers], there is nothing in his
complaint, particularly in view of the fact that he is no longer incarcerated at the facility at
which the alleged assaults occurred, having since been transferred to the Southport
Correctional Facility, to demonstrate that he is in imminent danger of serious physical
injury.”); Tucker v. McCauley, No. 09-cv-12757, 2010 WL 2884642, at *2 (E.D. Mich. April
9, 2010), report and recommendation adopted in relevant part, rejected in part on other
grounds, 2010 WL 2884641 (E.D. Mich. July 20, 2010) (“Shortly after his complaint was
filed, Plaintiff was transferred to Oaks Correctional Facility in Manistee, Michigan.
Consequently, Plaintiff no longer receives treatment from the Defendants and any danger that
the Defendants may have posed to the Plaintiff as a result of their alleged ongoing
interference with doctor's orders no longer exists.”)
See Doc. 1.
See, e.g., Williams v. Lackawanna County Prison, No. 07-cv-1137, 2010 WL 1508542, at *3
(M.D. Pa. Feb. 25, 2010) (“Although the plaintiff . . . suffered from hunger pains, he has
provided no evidence that he suffered from any physical injury as a result of the inadequate
nutrition or that he suffered from any food related illness.”).
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that Plaintiff suffered or was at the risk of suffering an adverse health consequence
or physical injury from the missed meals. As the United States Court of Appeals for
the Third Circuit has acknowledged, “we are aware of no published authority
holding that hunger or starvation are per se physical injuries.”16
Because Plaintiff has three prior strikes and has failed to establish that he was
under the imminent threat of “serious physical injury,” the Court will grant the
motion for reconsideration and revoke Plaintiff’s leave to proceed in forma pauperis.
Accordingly, IT IS HEREBY ORDERED that:
1.

Defendants’ motion for reconsideration, Doc. 140, is GRANTED;

2.

Plaintiff’s motion for leave to file a sur-reply to the motion for

reconsideration, Doc. 146, is GRANTED;
3.

Plaintiff’s sur-reply, Doc. 147, is accepted as filed;

4.

Plaintiff’s leave to proceed in forma pauperis is REVOKED;

5.

Plaintiff’s

motion

in

opposition

to

defendants’

motion

for

reconsideration, Doc. 142, is DENIED AS MOOT;
6.

The Administrative Order dated October 27, 2015, Doc. 10, is

VACATED. No further monies shall be deducted from Plaintiff’s prison account
pursuant to that Order.

16

Salley v. Pa. Dep’t of Corrs., 181 F. App’x 258, 264 (3d Cir. 2006) (in the context of proof
of actual physical injury after jury verdict).
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7.

The Clerk of Court is directed to FORWARD this Order to the

Superintendent/Warden of Plaintiff’s present place of confinement; and
8.

Plaintiff shall pay the remaining filing fee of $270.2817 as well as the

administrative fee of $50.00 for this civil action within fourteen (14) days from the
date of this Order. Failure to pay the required filing fee will result in the dismissal
of this civil action for nonpayment of the fee.

BY THE COURT:

s/ Matthew W. Brann
Matthew W. Brann
United States District Judge

17

On June 8, 2016, Plaintiff paid $13.08, on September 22, 2020, Plaintiff paid $9.26, and on
October 13, 2020, Plaintiff paid $57.38 towards the filing fee owed in this civil action
pursuant to 28 U.S.C. § 1915(b). No further payments have been made.
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