Husband v. Aleman-Acevedo et al

Filing 24

MEMORANDUM A separate Order shall issue.Signed by Honorable Robert D. Mariani on 1/13/17. (jfg)

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IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
EUNICE HUSBAND,
Plaintiff

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Civil No.: 3:16-cv-498
(Judge Mariani)

v.

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J. ALEMAN-ACEVEDO, et al.,
Defendants

MEMORANDUM

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Background
Plaintiff Eunice Husband ("Husband"), a federal inmate incarcerated at the United

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States Penitentiary at Lewisburg ("USP-Lewisburg"), Pennsylvania, initiated this Bivens1
action on March 23, 2016, seeking to proceed in forma pauperis. (Doc. 1). Husband is a
prolific filer who is subject to the three strikes provision set forth in 28 U.S.C. § 1915(g).

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The Court initially granted Husband's application to proceed in forma pauperis status. (Doc.

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9). Defendants thereafter filed a motion to remove Husband's in forma pauperis status, and
stay the proceedings pending receipt of the full filing fee. (Doc. 16). By Memorandum and
Order dated December 12, 2016, the Court determined that Husband failed to sufficiently
allege that he was in imminent danger of serious bodily harm, and granted Defendants'

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Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971) (holding that there exists
an implied private action for damages against federal officers alleged to have violated acitizen's
constitutional rights).
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motion to revoke Husband's in forma pauperis status. (Docs. 21, 22). The Court vacated

the prior Order granting Husband's motion to proceed without full prepayment of fees and
costs, stayed this action pending receipt of the full filing fee, and granted Husband thirty
(30) days to pay the full filing fee if he wished to pursue the claims in the instant action.

(ld.).
Pending before the Court is Husband's motion for reconsideration (Doc. 23) of this
Court's December 12, 2016 Order. For the reasons set forth below, the motion for
reconsideration will be denied.
II.

Motion for Reconsideration Standard of Review
A motion for reconsideration is a device of limited utility. It may be used only to seek

remediation for manifest errors of law or fact or to present newly discovered evidence

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which, if discovered previously, might have affected the court's decision. Harsco Corp. v.
Zlotnicki, 779 F.2d 906 (3d Gir. 1985), cerl. denied, 476 U.S. 1171 (1986). Accordingly, a
party seeking reconsideration must demonstrate at least one of the following grounds prior
to the court altering, or amending, a standing judgment: (1) an intervening change in the
controlling law; (2) the availability of new evidence that was not available when the court
granted the motion; or (3) the need to correct a clear error of law or fact or to prevent

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manifest injustice. Max's Seafood Cafe v. Quineros, 176 F.3d 669,677 (3d Gir. 1999),

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citing Norlh River Ins. Co. v. C/GNA Reinsurance Co., 52 F.3d 1194, 1218 (3d Gir. 1995).

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A motion for reconsideration is appropriate in instances where the court has

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"...misunderstood a party, or has made a decision outside the adversarial issues presented
to the Court by the parties, or has made an error not of reasoning but of apprehension."
Rohrbach v. AT & TNassau Metals Corp., 902 F. Supp. 523, 527 (M.D. Pa. 1995), vacated
in part on other grounds on reconsideration 915 F. Supp. 712 (M.D. Pa. 1996), quoting
Above the Belt, Inc. v. Mel Bohannan Roofing, Inc., 99 F.R.D. 99, 101 (E.D. Va. 1983). It

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may not be used as a means to reargue unsuccessful theories, or argue new facts or issues
that were not presented to the court in the context of the matter previously decided.

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Drysdale v. Woerth, 153 F. Supp. 2d 678, 682 (E.D. Pa. 2001). "Because federal courts

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have a strong interest in the finality of judgments, motions for reconsideration should be

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granted sparingly." Continental Casualty Co. v. Diversified Indus. Inc., 884 F. Supp. 937,

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943 (E.D. Pa. 1995).

III.

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Discussion

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Presently, Husband requests that the Court reverse its Order removing his in forma

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pauperis status. (Doc. 23). Upon review of the instant motion, Husband fails to establish

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any grounds warranting reconsideration of the December 12, 2016 Memorandum and

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Order. Rather, Husband simply restates the allegations of the complaint, and again

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requests that the Court allow him to proceed in forma pauperis based on the same reasons
set forth in the complaint.

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In the motion for reconsideration, Husband claims that, at the time he filed his

complaint, he was in imminent danger of serious physical injury because he was "sexually

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assaulted, sexually harassed, physically assaulted, and/or sexually verbally harassed" by

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Defendant Aleman-Acevedo in January, February, and March 2016. (Id. at pp. 1-2).

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Husband claims that Defendants' explanation that staff may probe inmates' genitalia during

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pat-down searches must "fail." (ld. at p. 2). Additionally, Husband asserts "a pattern of staff

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misconduct" due to his placement in cells and recreation areas with inmates from adverse

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"geographical groups," and states that he engaged in 'fights in August 2013, and June and
July 2016. (Id. at p. 3). Husband claims that his "sufferings have manifested over [the}
years." (ld.).
In the complaint, Husband alleged that, in January, February and March, 2016,
Defendant Aleman-Acevedo groped his genitals and buttocks during pat-down searches,
yanked his hand restraints, stared at his genitals, and made a sexual remark while he was
in the shower. (Doc. 1, pp. 3-7). Husband alleged that he informed the Defendants about
the incidents, and certain unnamed Defendants witnessed the incidents, but failed to report
them. (ld.). Husband noted that Defendants advised him that staff may probe inmates'

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alleged that he engaged in a fight with another inmate in August 2013, and that staff

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"continues to place plaintiff in harms-way by placing plaintiff in Recreation-cages with other

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genitalia during pat-down searches. (ld.). In asupplement to the complaint, Husband

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Washington, D.C. inmates." (Doc. 14, p. 1). This Court previously determined that the
alleged physical and sexual assaults that occurred in the months and years prior to the filing
of the complaint were insufficient to invoke the imminent danger exception to the three
strikes rule. (Doc. 21, pp. 4-5); see also Ball v. Hummel, 2012 WL 3618702, at *11 (M.D.
Pa. 2012), adopted by, 2012 WL 3624045 (M.D. Pa. 2012), affirmed, 577 F. App'x 96 (3d
Cir. 2014) (finding that the inmate could not save her "otherwise inadequate pleadings by
alleging in vague and conclusory terms that she feels constantly under threat of some sort
of harm. Quite the contrary, it is well-settled that: 'this type of general assertion: is
insufficient to invoke the exception to § 1915(g) absent specific fact allegations of ongoing
serious physical injury, or of a pattern of misconduct evidencing the likelihood of imminent
serious physical injury"') (citations omitted); Brown v. Lyons, 2013 WL 5629774, at *4 (E.D.
Pa. 2013) ("even if an alleged harm may in fact be 'impending,' it does not satisfy this
exception if it does not threaten to cause 'serious physical injury"') (citing 28 U.S.C. §
1915(g)). This Court further determined that Husband did not allege any form of serious
physical injury, and his allegation of verbal harassment could not reasonably be construed
as an imminent threat of serious physical injury. (Doc. 21, pp. 4-5).
Husband has not demonstrated a need to reconsider the December 12, 2016
Memorandum and Order. He fails to advance an intervening change in controlling law, to
present newly found evidence, or to establish that a clear error of law or fact exists. Nor

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does he establish that the Court came to its conclusions by way of some gross
misunderstanding of the facts or law of this case. Consequently, the motion for
reconsideration will be denied.
A separate Order shall issue.

Date: January@-, 2017
o
lani
United States District Judge

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