El-Alamin v. Anderson et al

Filing 24

MEMORANDUM (Order to follow as separate docket entry)In conclusion, Plaintiff has admittedly had at least three prior actions dismissed as frivolous. Second, there is no indication that Plaintiff was at risk of serious physical injury when this acti on was filed. Based upon those considerations, this action will be dismissed under § 1915(g). If Plaintiff pays the required filing fee within twenty-one days (21) of the date of this Memorandum, this matter will be reopened. An appropriate Order will enter.Signed by Honorable Richard P. Conaboy on 7/12/17. (cc)

IN THE UNITED STATES DISTRICT COURT
FOR THE
MIDDLE DISTRICT OF PENNSYLVANIA

MALIK AL MUSTAFA EL-ALAMIN,

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Plaintiff
v.
C.O. ANDERSON, ET AL.,
Defendants

CIVIL NO. 3:CV-16-2424
(Judge Conaboy)

_________________________________________________________________
MEMORANDUM
Background
Malik Al Mustafa El-Alamin (Plaintiff), an inmate presently
confined at the United States Penitentiary, Florence, Colorado
(USP-Florence), initiated this pro se combined

Bivens1/Federal

Tort Claims Act (FTCA) action regarding his prior confinement at
the United States Penitentiary, Lewisburg, Pennsylvania (USPLewisburg).

This Complaint is dated December 5, 2016 and will be

deemed filed as of that date.
It is undisputed that Plaintiff was housed at USP-Lewisburg
from April 28, 2014 to December 12, 2016.

His pending Complaint

contends that he was placed in overly tight restraints for
approximately two days beginning on September 29, 2015.

1.
Bivens v. Six Unknown Named Agents of Fed. Bureau of
Narcotics, 403 U.S. 388 (1971).
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Defendant United States of America on behalf of itself and
the individual Defendants responded to the complaint by filing a
motion requesting that Plaintiff’s in forma pauperis status be
removed.

See Doc. 12.

The opposed motion is ripe for

consideration.
Discussion
28 U.S.C. § 1915(g) provides that a federal civil action by
a prisoner proceeding in forma pauperis is barred if he or she:
has, on 3 or more prior occasions, while
incarcerated or detained 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
fails to state a claim upon which relief
may be granted, unless the prisoner is
under imminent danger of serious physical
injury.
While incarcerated, Plaintiff previously initiated three
civil actions under his birth name of Eric Britten which were
dismissed for failure to state a claim. See

Britten v. Benson,

Civil No. 14-7022, 2002 WL 1558276 (D. Minn. July 12, 2002).
Doc. 13-2.

See

Plaintiff has also had actions dismissed for failure

to state a claim under his current name of El-Alamin.

See

El-

Alamin v. Federal Bureau of Prisons,, Civil No. 14-CV-1136,(S.D.
Ill.

June 2014)((sua sponte dismissal for failure to state a

claim) and El-Alamin v. Fricke, No. 14-CV-1201, (C. D. Ill. June
4, 2014).

The determination of the applicability of § 1915(g) to

the pending action is bolstered by the fact that he has had prior

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actions dismissed under the three strikes provision2 as well as
Plaintiff’s own admission in his pending complaint that he has
accumulated three strikes.

See Doc. 1, ¶ VIII.

The unconstitutional conduct alleged in Plaintiff’s latest
action stems from a September 29-30, 2015 use of restraints which
did not place this inmate in danger of imminent "serious physical
injury" at the time his Complaint was filed over a year later on
December 5, 2016 (just one week prior to his transfer from USPLewisburg).

See 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)(Caldwell, 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). On the contrary, this action solely regards
alleged events which occurred over a year earlier.

Contrary to

Plaintiff’s argument, the claim that Plaintiff was awaiting carpal
tunnel surgery for an injury allegedly sustained over a year
earlier does not satisfy his burden of showing imminent danger.
In conclusion, Plaintiff has admittedly had at least three
prior actions dismissed as frivolous.

Second, there is no

indication that Plaintiff was at risk of serious physical injury
when this action was filed.

Based upon those considerations, this

action will be dismissed under § 1915(g).

If Plaintiff pays the

2. See El-Alamin v. Moats, Civil No. 14-CV-1137 (C.D. Ill.
See Doc. 13-2, Exhibit 3.
3

2014).

required filing fee within twenty-one days (21) of the date of
this Memorandum, this matter will be reopened.

An appropriate

Order will enter.

S/Richard P. Conaboy
RICHARD P. CONABOY
United States District Judge

DATED: JULY 12 , 2017

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