Husband v. Ebbert et al

Filing 13

MEMORANDUM An appropriate Order shall issue.Signed by Honorable Robert D. Mariani on 1/6/17. (jfg)

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

EUNICE HUSBAND,
Plaintiff

Civil No.: 3:16-cv-2255

(Judge Mariani)

v.
DAVID J. EBBERT, et al.,
Defendants
MEMORANDUM
I.

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

States Penitentiary at Lewisburg (UUSP-Lewisburg"), Pennsylvania, initiated this Bivens1
action on November 2,2016, 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).
Previously by Memorandum and Order dated December 6,2016, the Court determined that
Husband failed to sufficiently allege that he is in imminent danger of serious bodily harm,
and denied his application to proceed in forma pauperis. (Docs. 9, 10). The Court granted
Husband thirty (30) days to pay the full filing fee if he wished to pursue the claims in the
instant action. (ld.).

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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 a citizen's
constitutional rights).

Pending before the Court is Husband's motion for reconsideration (Doc. 11) of this
Court's December 6, 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
which, if discovered previously, might have affected the court's decision. Harsco Corp. v.
Zlotnicki, 779 F.2d 906 (3d Cir. 1985), cert. 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
manifest injustice. Max's Seafood Cafe v. Quineros, 176 F.3d 669, 677 (3d Cir. 1999),
citing North River Ins. Co. v. C/GNA Reinsurance Co., 52 F.3d 1194, 1218 (3d Cir. 1995).

A motion for reconsideration is appropriate in instances where the court has
"...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 &T Nassau 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

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Above the Belt, Inc. v. Mel Bohannan Roofing, Inc., 99 F.R.D. 99, 101 (E.D. Va. 1983). It
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.

Drysdale v. Woerlh, 153 F. Supp. 2d 678, 682 (E.D. Pa. 2001). "Because federal courts
have a strong interest in the finality of judgments, motions for reconsideration should be
granted sparingly." Continental Casualty Co. v. Diversified Indus. Inc., 884 F. Supp. 937,
943 (E.D. Pa. 1995).

III.

Discussion
Presently, Husband requests that the Court reverse its Order denying his application

for leave to proceed in forma pauperis. (Doc. 11). The Court determines that Husband fails
to establish any grounds warranting reconsideration of the December 6, 2016 Memorandum
and Order. Rather, Husband simply restates the allegations of the complaint, and again
requests that the Court allow him to proceed in forma pauperis based on the same reasons
set forth in the complaint.
In the motion for reconsideration, Husband claims that, at the time he filed his
complaint, he was in imminent danger of serious bodily injury or harm because he was
celled with another inmate, his jaw was injured, and there was a possibility that his jaw
could be reinjured if he was assaulted. (Id. at p. 1). Additionally, Husband asserts "a
pattern of staff misconduct" due to his placement in cells and recreation areas with inmates

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from adverse "geographical groups." (Id.).
In the complaint, Husband alleged that his jaw was broken on July 7,2016 during an
altercation with two fellow inmates, and based on his purported weak jaw, he sought
assignment to a single cell to avoid the possibility of reinjuring his jaw. (Doc. 1, p. 5). This
Court previously determined that there were no specific allegations that any inmates
threatened Husband, and his bare allegation that he may engage in a fight with other
inmates, which may cause injury to his jaw, was insufficient to invoke the imminent danger
exception to the three strikes rule. (Doc. 9, p. 4); 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)).
Husband has not demonstrated a need to reconsider the December 6, 2016

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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
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.
An appropriate Order shall issue.

Date: January

Lt--,

2017

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