Opinion
Civil Action 20-2022
01-21-2021
THOMAS R. GALLOWAY, JR., Plaintiff, v. WESTMORELAND COUNTY PRISON, GEORGE LOWTHER, Warden D. Security Warden, and ERIC SCWARTZ, D. Warden, Defendants.
Nora Barry Fischer District Judge.
REPORT AND RECOMMENDATION
MAUREEN P. KELLY UNITED STATES MAGISTRATE JUDGE.
I. RECOMMENDATION
For the reasons stated below, it is respectfully recommended that the Motion for Leave to Proceed in Forma Pauperis ECF No. 1) filed by Plaintiff Thomas R. Galloway (“Plaintiff”) be denied.
II. REPORT
Thomas R. Galloway, Jr. (“Plaintiff”), currently is a pre-trial detainee at the Westmoreland County Prison. He also is subject to a detainer from the Pennsylvania Board of Probation and Parole for violating his parole from a prior state conviction. Plaintiff alleges in his proposed Complaint violations of his rights under the Eighth and Fourteenth Amendments to the Constitution of the United States based on Defendants' alleged failure to prevent Plaintiff's exposure to and contraction of COVID-19. See ECF-No. 1-1 at 2-3. Plaintiff moves to proceed with this lawsuit in forma pauperis.
Plaintiff also alleges that his rights under the Fifth Amendment were violated, but he does not assert relevant factual allegations in addition to those recited herein. See ECF No. 1-1 at 5.
Under the Prisoner Litigation Reform Act of 1996 (“PLRA”), Pub. L. No. 104-134, 110 Stat. 1321 (1996), Congress created the so-called “three-strikes rule” for prisoner plaintiffs seeking to proceed with a lawsuit in forma pauperis. The three-strikes rule provides as follows.
In no event shall a prisoner bring a civil action or appeal a judgment in a civil action or proceeding under this section if the prisoner has, on 3 or more 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.28 U.S.C. § 1915(g).
Plaintiff was deemed to have run afoul of the three-strikes rule of Section 1915(g) at least as early as 2013. See Order Denying IFP, Galloway v. Pennsylvania, No. 13-960 (W.D. Pa. Sept. 17, 2013), ECF No. 13. Thus, in order to be allowed to proceed in forma pauperis in the present matter, Plaintiff must show that he faced “imminent danger of serious physical injury” at the time that he filed this lawsuit. 28 U.S.C. § 1915(g); see also Abdul-Akbar v. McKelvie, 239 F.3d 307, 312 (3d Cir. 2001) (en banc).
In order to fulfill the “imminent danger” requirement, Plaintiff must demonstrate an adequate nexus between the claims he seeks to pursue and the “imminent danger” that he alleges. See Pettus v. Morgenthau, 554 F.3d 293, 296 (2d Cir. 2009). The threat of imminent danger also must be prospective in nature, and cannot relate only to a past incident of harm. See Abdul- Akbar, 239 F.3d at 313 (“[s]omeone whose danger has passed cannot reasonably be described as someone who ‘is' in danger, nor can that past danger reasonably be described as ‘imminent.'”).
Plaintiff's factual allegations underlying his legal claims are that he was exposed to, and subsequently contracted, COVID-19 due to the conditions of his confinement at Westmoreland County Prison. Specifically, Defendants are alleged to have failed to provide “N96 mask[s]” to prisoners, despite being required to do so by prison policy. Defendants are alleged instead to have provided prisoners only with pieces of “cut up sheet” to cover their faces. See ECF No. 1-1 at 3. Also, the prison is allegedly overcrowded, which increased Plaintiff's risk of exposure to the disease. Id. Plaintiff further alleges that, as an African American, he is at high risk for physical harm. Id. at 2.
On or about December 8, 2020, Plaintiff alleges to have received positive test results for COVID-19 after five prior negative tests. Id. Since testing positive, Plaintiff allegedly is “physically sick [and suffers from] [c]onstant pain, having trouble breathing with out [sic] coughing, headaches, lost [sic] of appetite, also breathlessness, [and] left hand seems to have some nerve damage.” Id. at 3. Plaintiff further alleges that he suffers from anxiety due to his diagnosis, and is “subjected to how to survive the after care need to protect against nerve damage and respiratory damage.” Id. at 2-3. Plaintiff seeks monetary damages, and a release of non-violent prisoners (of which he claims to be one) in order to reduce the prison population to a manageable level. Id. at 6.
Courts within the Third Circuit have held that mere exposure to COVID-19 in a prison setting - without something more - is not sufficient to trigger the exception to Section 1915 's three-strike rule. Talbert v. Well Path, No. CV 20-3401, 2020 WL 4815828, at *4 (E.D. Pa. Aug. 19, 2020). This tracks with holdings of district courts outside of this circuit as well. See, e.g., Cole v. Nieman, No. 4:20CV3074, 2020 WL 5545398, at *3-4 (D. Neb. Sept. 16, 2020) (citing cases). That is not to say that exposure to COVID-19 cannot provide at least a partial basis to overcome the three-strike rule. For example, in Stine v. Von Blanckensee, the United States District Court for the District of Arizona held that a federal inmate that alleged contracting COVID-19, suffering symptoms, and being denied medical care had met the imminent danger exception to Section 1915(g). See No. CV 20-00489-TUC-DCB, 2020 WL 8024369, at *1 and n.1 (D. Ariz. Dec. 22, 2020).
Here, like Stine, Plaintiff alleges both that he has contracted COVID-19, and that he is experiencing symptoms. However, unlike Stine, Plaintiff does not allege a lack of medical care. Instead, Plaintiff explicitly complains of the prospect of being exposed to “after care” -presumably medical care - that he will receive as a result of his diagnosis. See (ECF No. 1-1 at 3). Thus, the “something more” in addition to his exposure to COVID-19 is mitigated by the medical treatment he appears to be receiving.
Further, Plaintiff's positive COVID-19 test occurred on December 8, 2020 - fifteen days prior to the earliest date that the proposed complaint could have been placed in the prison mail system. See also (ECF No. 1-3) (dated December 23, 2020, and mailed in the same envelope as the proposed complaint). Thus, presuming that Plaintiff's December 8, 2020 COVID-19 test was accurate, his contracting COVID-19 is not “prospective” harm as required by case law. See Abdul-Akbar, 239 F.3d at 313.
As a result, Plaintiffs exposure to COVID-19, positive diagnosis 15 days prior to filing the complaint, and symptoms, without denial of medical care, does not rise to the “something more” necessary to show the “imminent danger of serious physical injury” required to overcome the three-strikes rule of Section 1915(g).
Accordingly, Plaintiff is barred from proceeding in forma pauperis in this lawsuit, and must pay the fill filing fee and administrative fee if he wishes to proceed.
III. CONCLUSION
Based on the considerations set forth above, it respectfully is recommended that Plaintiff's Motion for Leave to Proceed in Forma Pauperis (ECF No. 1) should be denied, and that Plaintiff should be required to pay the entire filing fee and administrative fee in order to proceed with this lawsuit.
In accordance with the Magistrate Judges Act, 28 U.S.C. § 636(b)(1), and Local Rule 72.D.2, the parties are permitted to file written objections in accordance with the schedule established in the docket entry reflecting the filing of this Report and Recommendation. Objections are to be submitted to the Clerk of Court, United States District Court, 700 Grant Street, Room 3110, Pittsburgh, PA 15219. Failure to timely file objections will waive the right to appeal. Brightwell v. Lehman, 637 F.3d 187, 193 n.7 (3d Cir. 2011). Any party opposing objections may file their response to the objections within fourteen days thereafter in accordance with Local Civil Rule 72.D.2.