Opinion
CIVIL 1:21-CV-949
04-08-2022
ALFONSO PERCY PEW, Plaintiff, v. LT. SHERMAN, et al., Defendants.
BRANN, CHIEF JUDGE.
REPORT AND RECOMMENDATION
MARTIN C. CARLSON, UNITED STATES MAGISTRATE JUDGE.
I. Statement of Facts and of the Case
This is a prisoner civil rights case filed by the pro se plaintiff, Alfonso Pew, a state inmate incarcerated in the Pennsylvania Department of Corrections (“DOC”) at the State Correctional Institution at Phoenix. Pew is a prolific, although prodigiously unsuccessful litigant, having filed a myriad of lawsuits in federal court, many of which have been dismissed as frivolous. Thus, under the Prison Litigation Reform Act of 1995 (“PLRA”), Pew is prevented from bringing a suit in forma pauperis unless he can show that he “is under imminent danger of serious physical injury.” 28 U.S.C.§ 1915(g).
Pew does not dispute that he falls under the PLRA's “three strikes” provision.
On May 26, 2021, Pew filed his complaint, along with an affidavit stating that he was in imminent danger of serious bodily injury while he was incarcerated at SCI Rockview and argued that he should be granted leave to proceed in forma pauperis. (Docs. 1, 2). On June 10, 2021, we conditionally granted Pew in forma pauperis status, subject to any defense motions to revoke his IFP status. (Doc. 10). The defendants have now filed such a motion, arguing that Pew has since been transferred to a different institution, and thus he is not in imminent danger of physical injury. (Doc. 29).
For the reasons that follow, we recommend that the defendants' motion be denied.
III. Discussion
The defendants have requested that Pew's in forma pauperis status be revoked. Under the Prison Litigation Reform Act, this Court has an affirmative duty to screen and review prisoner complaints filed by inmates who seek leave to proceed in forma pauperis. 28 U.S.C. § 1915A. One aspect of this review, a review “designed to filter out the bad claims and facilitate consideration of the good, ” Jones v. Bock, 549 U.S. 199, 204 (2007), entails ensuring that inmates who have abused this privilege in the past are not permitted to persist in further in forma pauperis litigation. Towards that end, Congress enacted 28 U.S.C. § 1915(g), which provides in pertinent part that:
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 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.28 U.S.C. § 1915(g).
Congress enacted § 1915(g) with the express purpose of “[d]eterring frivolous prisoner filings in the federal courts [a goal which] falls within the realm of Congress' legitimate interests.” Abdul-Akbar v. McKelvie, 239 F.3d 307, 318-19 (3d Cir. 2001). With this goal in mind, it is well settled that, “generally, a prisoner may not be granted IFP [in forma pauperis] status if, on three or more occasions, he brought an action that was dismissed as frivolous, ” Brown v. City Of Philadelphia, 331 Fed.Appx. 898, 899 (3d Cir. 2009), and inmates who attempt to bring such lawsuits in forma pauperis should have their complaints dismissed. Id. Notably, this provision of federal law does not deny the inmate who has been found to be a repeat frivolous filer the right to file new cases; it only conditions that right upon the payment of the filing fee.
In determining whether a particular inmate-plaintiff has had three prior dismissals, or “three strikes, ” under § 1915(g), we look to the status of the plaintiff's prior litigation history at the time he filed the current lawsuit. Thus, only dismissals which were actually ordered at the time of the filing of the instant case are counted towards a “three strike” assessment under § 1915(g), and “[a] dismissal does not qualify as a ‘strike' for § 1915(g) purposes unless and until a litigant has exhausted or waived his or her appellate rights. See Jennings v. Natrona County Det. Ctr. Med. Facility, 175 F.3d 775, 780 (10th Cir. 1999); Adepegba v. Hammons, 103 F.3d 383, 387-88 (5th Cir. 1996); Lopez v. U.S. Dept. of Justice, 228 Fed.Appx. 218 (3d Cir. 2007). However, in assessing when a particular inmate plaintiff is subject to the gatekeeping provisions of § 1915(g), it is also clear that “lawsuits dismissed as frivolous prior to the enactment of the PLRA count as ‘strikes' under § 1915(g).” Keener v. Pennsylvania Bd. of Probation & Parole, 128 F.3d 143, 144 (3d Cir. 1997) (citing Adepegba, 103 F.3d 383); Abdul-Wadood v. Nathan, 91 F.3d 1023 (7th Cir. 1996); Green v. Nottingham, 90 F.3d 415 (10th Cir. 1996).
The grounds of dismissal cited by the court in its dismissal orders are also significant in this setting. Section 1915(g) provides that the preclusive effect of this three strikes rule only applies where each of the prior cases “was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted.” Id. As the Third Circuit has observed:
[A] strike under § 1915(g) will accrue only if the entire action or appeal is (1) dismissed explicitly because it is “frivolous, ” “malicious, ” or “fails to state a claim” or (2) dismissed pursuant to a statutory provision or rule that is limited solely to dismissals for such reasons, including (but not necessarily limited to) 28 U.S.C. §§ 1915A(b)(1), 1915(e)(2)(B)(I), 1915(e)(2)(B)(ii), or Rule 12(b)(6) of the Federal Rules of Civil Procedure.Byrd v. Shannon, 715 F.3d 117, 126 (3d Cir. 2013).
In this case, it is undisputed that Pew's extensive history of frivolous litigation has now resulted in three strikes against this prisoner-plaintiff. Indeed, Pew concedes as much. Therefore, Pew has only a limited pathway available to him if he wishes to file further lawsuits without paying the filing fee mandated by statute. Once it is determined that an inmate-plaintiff has had at least three prior lawsuits dismissed “on the grounds that [they were] frivolous, malicious, or fail[ed] to state a claim upon which relief may be granted, ” 28 U.S.C. § 1915(g) compels denial of in forma pauperis status and dismissal of in forma pauperis lawsuits unless the inmate alleges that he or she “is under imminent danger of serious physical injury.” § 1915(g). With respect to this specific statutory exception, it is clear that:
The clause “unless he is in imminent danger of serious physical injury” is an exception to the preclusive effect of the statute. But the exception is cast in the present tense, not in the past tense, and the word “is” in the exception refers back to the same point in time as the first clause, i.e., the time of filing. The statute contemplates that the “imminent danger” will exist contemporaneously with the bringing of the action. Someone whose danger has passed cannot reasonably be described as someone who “is” in danger, nor can that past danger reasonably be described as “imminent.”Abdul-Akbar, 239 F.3d at 313. Moreover, in making this assessment of imminent danger:
A court need not accept all allegations of injury made pursuant to § 1915(g). To the contrary, a court may discredit “factual claims of imminent danger that are ‘clearly baseless,' i.e., allegations that are fantastic or delusional and rise to the level of the ‘irrational or wholly
incredible.' ” Gibbs v. Cross, 160 F.3d 962, 967 (3d Cir. 1998) (citing Denton v. Hernandez, 504 U.S. 25, 33, 112 S.Ct. 1728, 118 L.Ed.2d 340 (1992)). The Supreme Court has directed that, in assessing a case under 28 U.S.C. § 1915, we are not required to accept without question the truth of the plaintiff's allegations. See Denton, 504 U.S. at 32. Rather, we may be guided by judicially noticeable facts in determining whether the allegations are baseless or wholly incredible.Brown, 331 Fed.Appx. at 900.
Further, on this score, when weighing the imminence of a danger we are enjoined that:
“ ‘Imminent' dangers are those dangers which are about to occur at any moment or are impending.” Id. “By using the term ‘imminent,' Congress indicated that it wanted to ... prevent impending harms, not those harms that had already occurred.” Id.; see also Medberry v. Butler, 185 F.3d 1189, 1193 (11th Cir. 1999) (“Congress' use of the present tense in § 1915(g) confirms that a prisoner's allegation that he faced imminent danger sometime in the past is an insufficient basis to allow him to proceed in forma pauperis....”). The danger must also be imminent at the time the complaint or appeal is filed. See Abdul-Akbar, 239 F.3d at 312 (“[A] prisoner may invoke the ‘imminent danger' exception only to seek relief from a danger which is ‘imminent' at the time the complaint is filed.”); Banos v. O'Guin, 144 F.3d 883, 885 (5th Cir. 1998) (“[T]he language of § 1915(g), by using the present tense, clearly refers to the time when the action or appeal is filed....”).
Although § 1915(g)'s “imminent danger” exception might appear clear in theory, in practice it represents an “amorphous standard.” Ciarpaglini, 352 F.3d at 331. Courts have found imminent danger when a prisoner was placed near enemies who had beaten him, Ashley v. Dilworth, 147 F.3d 715 (8th Cir. 1998), when a prisoner suffered headaches and other symptoms as a result of exposure to dust and lint, Gibbs v. Cross, 160 F.3d 962 (3d Cir. 1998), and when a prisoner needed dental care due to an oral infection, McAlphin v. Toney, 281 F.3d 709 (8th Cir. 2002). The denial or withdrawal of needed medications can also constitute an imminent danger. See, e.g., Brown v. Johnson, 387 F.3d 1344, 1346 (11th Cir. 2004) (withdrawal of
medications for HIV and hepatitis); Ciarpaglini, 352 F.3d at 330 (denial of medication for bipolar, attention deficit, and panic disorders). But “[c]ourts ... deny leave to proceed IFP when a prisoner's claims of imminent danger are conclusory or ridiculous.” Ciarpaglini, 352 F.3d at 331. For example, complaining two years later of inadequate protection from reprisals by other prisoners can hardly be said to be an allegation of “imminent” danger, Heimermann v. Litscher, 337 F.3d 781, 782 (7th Cir. 2003), just as working in inclement weather may not be “danger” at all, Martin v. Shelton, 319 F.3d 1048, 1050 (8th Cir. 2003). Courts also reject imminent danger claims when a prisoner alleges only a past injury that has not recurred. See, e.g., Abdul-Akbar, 239 F.3d at 315 (concluding that being sprayed with pepper spray on one occasion is not imminent danger); Abdul-Wadood v. Nathan, 91 F.3d 1023 (7th Cir. 1996) (concluding that being given Ibuprofen instead of a stronger pain medication for an injury that had already healed is not imminent danger). And “vague and utterly conclusory” assertions that medical treatment has been withheld, particularly when a prisoner has been seen repeatedly by a physician, do not amount to a showing of imminent danger. White v. Colorado, 157 F.3d 1226, 1231 (10th Cir. 1998).Ball v. Famiglio, 726 F.3d 448, 467-68 (3d Cir. 2013) abrogated in part on other grounds by Coleman v. Tollefson, 575 U.S. 532 (2015).
In the instant case, Pew's complaint alleges that on April 26, 2021, Lieutenant Sherman placed him on a cell block which he had specifically requested not to be placed on because he had filed a Prison Rape Elimination Act complaint against officers on that block. (Doc. 1, at 4-5). He asserts that he did not receive the separation he requested, which led to him being physically assaulted by correctional staff. (Id.) He alleges that several of the defendants knew of the risk of harm he faced by being placed on this block but did nothing to stop it from happening or to effectuate his separation from these officers. (Id.) Additionally, the affidavit Pew filed with his complaint asserts that at the time he filed his complaint in May of 2021, he still had not received the separation he requested, and thus was still housed on a cell block with correctional staff who had allegedly assaulted him. (Doc. 2).
For their part, the defendants contend that Pew cannot show that he was in imminent danger because by September or October of 2021, Pew had been transferred to a different institution. (Doc. 30). Thus, they assert that the transfer from SCI Rockview shows that Pew was no longer in imminent danger at that institution. The defendants rely on Pew v. Jones, 2020 WL 6111045 (M.D. Pa. Oct. 16, 2020), a decision in which Judge Brann revoked Pew's IFP status, finding that Pew's transfer to another facility negated a finding that he was in imminent harm. However, as Pew notes, that case differs from the instant case because in that case, Pew had been transferred prior to filing his complaint and prior to the court considering his motion to proceed in forma pauperis. Id., at *2. Here, Pew filed his original complaint on May 26, 2021, and filed his amended complaint on July 23, 2021, and he was not transferred from SCI Rockview to SCI Phoenix until September or October of 2021.
It is well settled that when considering a motion to revoke a plaintiff's IFP status, we must consider the plaintiff's allegations of imminent harm as of the time of filing the lawsuit. See Abdul-Akbar, 239 F.3d at 313 (holding that § 1915(g) “contemplates that the ‘imminent danger' will exist contemporaneously with the bringing of the action”); Bronson v. Kerestes, 2010 WL 411720 at *5 (M.D. Pa. Jan. 25, 2010) (“The court must assess whether the prisoner was under imminent danger at the time the complaint was filed”). Using the time of filing as our frame of reference, when Pew filed his original complaint in May of 2021, and even in July of 2021 when he filed his amended complaint, he was still housed at SCI Rockview and had not yet been transferred. Thus, his subsequent transfer in September or October of 2021 has no bearing on whether Pew has alleged that he was in imminent danger at SCI Rockview at the time the complaint was filed.
Accordingly, given that the defendants have not shown that Pew's IFP status should be revoked at this time, we recommend that this motion be denied.
IV. Recommendation
Accordingly, for the foregoing reasons, IT IS RECOMMENDED THAT the defendants' motions to revoke the plaintiff's in forma pauperis status (Doc. 29) be DENIED.
The parties are further placed on notice that pursuant to Local Rule 72.3:
Any party may object to a magistrate judge's proposed findings, recommendations or report addressing a motion or matter described in 28 U.S.C. § 636 (b)(1)(B) or making a recommendation for the disposition of a prisoner case or a habeas corpus petition within fourteen (14) days after being served with a copy thereof. Such party shall file with the clerk of court, and serve on the magistrate judge and all parties, written objections which shall specifically identify the portions of the proposed findings, recommendations or report to which objection is made and the basis for such objections. The briefing
requirements set forth in Local Rule 72.2 shall apply. A judge shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made and may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The judge, however, need conduct a new hearing only in his or her discretion or where required by law, and may consider the record developed before the magistrate judge, making his or her own determination on the basis of that record. The judge may also receive further evidence, recall witnesses or recommit the matter to the magistrate judge with instructions.