Opinion
CIVIL 1:21-CV-1694
04-08-2022
ALFONSO PERCY PEW, Plaintiff, v. CORRECTIONAL OFFICER ACE, 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 October 4, 2021, Pew filed his complaint, along with a declaration stating that he was in imminent danger of serious bodily injury due to instances in which correctional staff used OC spray in close proximity to him from March of 2020 through September of 2021, and argued that he should be granted leave to proceed in forma pauperis. (Docs. 1, 2). On October 5, 2021, we conditionally granted Pew in forma pauperis status, subject to any defense motions to revoke his IFP status. (Doc. 6). The defendants have now filed such a motion, arguing that Pew has not shown he was in imminent danger of physical injury. (Doc. 12).
For the reasons that follow, we recommend that the defendants' motion be granted.
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).
We must also be mindful that inmate allegations of imminent danger of serious bodily injury, while grave, may be used as “a tactic to circumvent section 1915(g).” Brown v. Beard, 492 F.Supp.2d 474, 477 (E.D. Pa. 2007). This caution is particularly appropriate here, where Pew has plainly combined and conflated a hodgepodge of disparate claims, many of which do not allege any imminent risk of serious bodily harm, into a single sweeping complaint. Indeed, we have previously warned Pew that this style of pleading is improper, telling him in clear and precise terms that:
Furthermore, Pew's unrelated claims of misconduct involve allegations of distinct acts committed by disparate parties at widely different times and places. Thus, there is no single, coherent legal, logical, topical or temporal connection between these various claims. Without some further articulation of a unifying theme or thread between these claims, the joinder of these plainly divergent claims in a single lawsuit is inappropriate under Rule 20 of the Federal Rules of Civil Procedure, the rule governing joinder of defendants in federal litigation, which provides, in part, that:
Person[s] ... may be joined in one action as defendants if: (A) any right to relief is asserted against them jointly, severally, or in the alternative with respect to or arising out of the same transaction, occurrence, or series of transactions or occurrences; and
(B) any question of law or fact common to all defendants will arise in the action.Fed. R. Civ. P. 20(a)(2).
In this case, it cannot be said from the proposed second amended complaint that these remaining allegations arise out of the same transaction, occurrence or series of transactions or occurrences. Quite the contrary, these episodes appear to be separate transactions, allegedly committed by different actors at divergent times and places. “[G]iven the hodgepodge of claims raised in the ... complaint, ” Boretsky v. Governor of New Jersey, 433 Fed.Appx. 73, 77 (3d Cir. 2011), this Court may properly, in the exercise of its discretion, dismiss this amended complaint, and require Pew to file separate complaints relating to what seem to be factually distinct claims. Id.
This course is particularly appropriate here, since Pew's efforts to file these unrelated claims as an amended or supplemental complaint seem little more than a thinly transparent effort to avoid the fact that Pew is barred by § 1915(g) from filing further in forma pauperis lawsuit absent a showing of imminent danger since that it has been established that the plaintiff has undeniably had three prior cases dismissed “on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted.” 28 U.S.C. § 1915(g). We should not permit Pew to evade the consequences of his own past history of frivolous litigation
through the simple expedient of bundling unrelated claims, of unknown merit, into an incomprehensible gestalt which Pew captions as an amended and supplemental complaint.Pew v. Boggio, No. 3:15-CV-1042, 2016 WL 3024947, at *9 (M.D. Pa. May 4, 2016), report and recommendation adopted, No. 3:15-CV-1042, 2016 WL 3001136 (M.D. Pa. May 25, 2016).
In the instant case, Pew has filed a complaint against five correctional defendants at SCI Rockview, alleging that he was subjected to OC spray on multiple occasions between March of 2020 and September of 2021. He asserts that some of the defendants used OC spray on him, while others failed to properly supervise these correctional defendants and train them on the use of OC spray. (Doc. 1, at 7-13). The complaint alleges that other defendants failed to open doors, air vents, and exhaust fans when the OC spray was used. (Id., at 10-11). He further alleges that several individuals who are not named as defendants had direct knowledge of the OC spray incidents because of the grievances he filed but did nothing to stop future incidents where OC spray was used. (Id., at 12). Thus, Pew's complaint casts a wide net that spans eighteen months and implicates many correctional individuals, some of whom are not named as defendants in this case.
On this score, 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”). Here, Pew's “imminent harm” allegedly occurred between March 2020 and September 2021, months before he filed the complaint in the instant case. Pew vaguely asserts that he has been subjected to OC spray on multiple occasions, that several individuals failed to open vents and windows, and that these actions have caused him physical injury at some point in time. Thus, Pew invites us to infer an imminent danger from events which allegedly took place as much as 18 months prior to the filing of this lawsuit, and last occurred one month prior to the filing of this complaint. This temporal gulf, which spans months and in some instances more than a year, is simply too great to be considered an imminent danger.
Accordingly, we cannot conclude that any of these instances which Pew alleges in his complaint constitute the necessary showing of “imminent harm” for purposes of allowing him to proceed in forma pauperis since “ ‘[i]mminent' dangers are [only] those dangers which are about to occur at any moment or are impending.” Meyers v. U.S. Dist. Court for the Middle Dist. of Pennsylvania, 2011 WL 766937 (M.D. Pa.Feb. 25, 2011). See e.g., Rieco v. Gilmore, 2017 WL 11502315, at *4 (W.D. Pa. Dec. 29, 2017) (finding no imminent harm when alleged harm occurred four months prior to the filing of the complaint); Husband v. Knapp, 2015 WL 1641146, at *7 (M.D. Pa. April 6, 2015) (finding no imminent danger from incidents occurring months prior to filing the complaint); see also Brown v. Lyons, 977 F.Supp.2d 475, 483-84 (E.D. Pa. 2013) (past conduct did not present an imminent danger for purposes of the three strikes provision, and “generalized allegations that such practices will continue . . .” are insufficient).
To the extent that Pew is asserting some sort of a continuous and ongoing harm since March of 2020 due to the use of OC spray on various occasions throughout the course of eighteen months, we conclude that these allegations are insufficient to establish imminent harm of physical injury. Indeed, courts have held that, in some instances, a threat of ongoing harm can constitute an imminent danger. See Davis v. Wetzel, 2018 WL 2978025, at *4 (M.D. Pa. June 13, 2018) (noting that “physical injury” has been construed to include diseases which, if left untreated, could constitute an imminent danger); Forrest v. Wetzel, 2018 WL 5263430, at *2 (M.D. Pa. Oct. 23, 2018) (finding that the plaintiff's Hepatitis C diagnosis, which he alleged was not being treated, constitute an imminent danger for purposes of proceeding in forma pauperis). However, in our view that is not the case here, where Pew vaguely asserts that correctional staff is continuously using OC spray over an unspecified period of time which caused him some sort of physical injury.
In sum, we conclude that Pew has not shown that he was subjected to imminent threat of physical harm at the time he filed the complaint in this matter. Rather, the instances of alleged harm in his complaint span a period of eighteen months and involve several correctional officers and individuals who are not named as defendants in this litigation. Accordingly, the defendants' motion to revoke Pew's IFP status should be granted.
IV. Recommendation
Accordingly, for the foregoing reasons, IT IS RECOMMENDED THAT the defendants' motions to revoke the plaintiff's in forma pauperis status (Doc. 12) be GRANTED.
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.