Opinion
CIVIL 1:23-CV-1407
03-13-2024
MICHAEL S. SMITH, Plaintiff, v. CARLA ROGERS, M.D., et al., Defendants.
Wilson Judge
REPORT AND RECOMMENDATION
Martin C. Carlson United States Magistrate Judge
I. Factual Background
In the Prison Litigation Reform Act, Congress established a series of procedures relating to prisoner civil litigation in federal court, procedures Adesigned to filter out the bad claims and facilitate consideration of the good.” Jones v. Bock, 549 U.S. 199, 204 (2007). One critical component of these reforms calls upon federal courts to perform a gatekeeping function with respect to pro se inmates who repeatedly seek leave to proceed in forma pauperis while filing frivolous claims. As part of this statutorily mandated process, we are obliged to screen civil complaints lodged by pro se litigants who wish to proceed in forma pauperis, deny such leave to prisoners who have on three or more prior occasions filed frivolous or meritless claims in federal court, and dismiss these inmate complaints, unless the inmate alleges facts showing that he is in imminent danger of serious bodily harm. 28 U.S.C. §1915(g).
In the instant case, we are now called upon to perform this function, a function that is an integral part of these Congressional Areforms designed to filter out the bad claims and facilitate consideration of the good” in this field Jones, 549 U.S. at 204. This case, which was referred to the undersigned on February 4, 2024, involves a prisoner plaintiff, Michael Smith, who has been found to be a frequent, frivolous litigant. Indeed, as the court has observed, Smith has incurred multiple strikes due to his past frivolous filings including the following dismissals: Smith v. United States, No. 1:21-CV-1422, 2022 WL 245479, at *2 (M.D. Pa. Jan. 25, 2022) (dismissed with prejudice pursuant to 28 U.S.C. § 1915(e)(2)(B)); Smith v. Commonwealth of Pennsylvania, No. 1:21-CV-01181, 2022 WL 108610 (M.D. Pa. Jan. 11, 2022) (dismissed with prejudice pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii)); Smith v. Franklin Cty. Ct. of Common Pleas, No. 1:21-CV-1032, 2021 WL 5330753, at *3 (M.D. Pa. Nov. 16, 2021) (dismissed with prejudice pursuant to 28 U.S.C. § 1915(e)(2)(B)); and Smith v. Law Office of Eric J. Weisbrod P.C.., No. 1:21-CV-01243 (M.D. Pa. Sept. 14, 2021), ECF No. 12 (dismissed with prejudice pursuant to 28 U.S.C. § 1915A(a) and 28 U.S.C. § 1915(e)(2)).
Smith's past litigative forays also suggest that the plaintiff is aware that his prior feckless lawsuits imperil his in forma pauperis status since in 2022 he filed a case under a pseudonym, describing himself as “Jesus Christ, a Person, GOD, the Eternal Resurrected Spirit, Tenant of Indigenous Land Estate MICHAEL SCOTT SMITH JR.,” Jesus Christ v. Pennsylvania, No. 1:22-CV-01084, 2022 WL 4111862, at *1 (M.D. Pa. Sept. 8, 2022). This effort at concealment was unavailing, as this court held that Smith's in forma pauperis filing in the name of Jesus Christ was barred by 28 U.S.C. §1915(g).
Undeterred, on August 24, 2023, Smith filed yet another pro se, in forma pauperis lawsuit naming Dr. Carla Rogers as a defendant. (Docs. 1 and 20). The gist of Smith's claims against Dr. Rogers is that the doctor participated as an expert witness in a prior case evaluating Smith's mental competence. Thus, nothing in the complaint implicated an imminent or serious threat to Smith's life or safety. Instead, the complaint discloses a past grudge between this inmate and an expert witness who assessed his mental competence.
Notwithstanding his prior status as a three strikes filer, Smith has sought leave to proceed in forma pauperis in this case. However, given this staggering array of prior frivolous filings, on January 31, 2024, Smith was “ORDERED to show cause, on or before Wednesday, February 14, 2024, why the dismissal of Smith's prior actions with prejudice should not be considered strikes against him per the terms of the PLRA, or, alternatively, how Plaintiff was under imminent danger of serious physical injury at the time the instant complaint was filed. See 28 U.S.C. § 1915(g).” (Doc. 19).
Smith has now filed a response to this order cast as a motion to stay the denial of his in forma pauperis status. (Doc. 22). This pleading does not dispute the immutable fact that Smith has repeatedly had prior lawsuits dismissed as frivolous. Nor does Smith demonstrate that he is entitled to 28 U.S.C. §1915(g)'s safe harbor provision which allows three strike litigants to still file complaints without paying the filing fee when they allege facts showing that they are in imminent damage of serious bodily harm. Instead, Smith simply insists that this case, and all of his prior dismissed lawsuits, were brought in good faith and had colorable merit.
Upon consideration, we find that Smith is undoubtedly subject to §1915(g)'s three strikes provision given his lengthy history of frivolous filings. We further conclude in this case that Smith has not, and cannot, credibly allege that he is in imminent damage of serious bodily harm as a result of the acts alleged in this complaint since those acts occurred years ago and Smith has not alleged that the role of Dr, Rogers in his prior litigation created and imminent threat of serious bodily injury. Therefore, he may not take advantage of the imminent danger of serious bodily harm exception to '1915(g)'s preclusive effect.
Having made these findings, we recommend that the court deny Smith's motion for leave to proceed in forma pauperis and dismiss this case without prejudice to Smith re-filing this complaint along with the filing fee required by law.
II. Discussion
Under the Prison Litigation Reform Act, this Court has an affirmative duty to screen and review prisoner complaints filed by inmates like Smith who seek leave to proceed in forma pauperis. 28 U.S.C. §1915A. One aspect of this review, a review Adesigned to filter out the bad claims and facilitate consideration of the good,” Jones, 549 U.S. at 204, 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 injury28 U.S.C. § 1915(g).
Congress enacted 28 U.S.C. § 1915(g) with the express purpose of A[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 Agenerally, 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
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.” Lopez v. U.S. Dept. of Justice, 228 Fed.Appx. 218 (3d Cir. 2007) (citing 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)). 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 v. Hammons, 103 F.3d 383 (5th Cir. 1996)); 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 clear that Smith has incurred at least three prior strikes as a result of his past frivolous filings. Indeed, this court has previously identified at least four cases which qualify as prior strikes under §1915(g):
1. Smith v. United States, No. 1:21-CV-1422, 2022 WL 245479, at *2 (M.D. Pa. Jan. 25, 2022) (dismissed with prejudice pursuant to 28 U.S.C. § 1915(e)(2)(B));
2. Smith v. Commonwealth of Pennsylvania, No. 1:21-CV-01181, 2022 WL 108610 (M.D. Pa. Jan. 11, 2022) (dismissed with prejudice pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii));
3. Smith v. Franklin Cty. Ct. of Common Pleas, No. 1:21-CV-1032, 2021 WL 5330753, at *3 (M.D. Pa. Nov. 16, 2021) (dismissed with prejudice pursuant to 28 U.S.C. § 1915(e)(2)(B)); and
4. Smith v. Law Office of Eric J. Weisbrod P.C., No. 1:21-CV-01243 (M.D. Pa. Sept. 14, 2021), ECF No. 12 (dismissed with prejudice pursuant to 28 U.S.C. § 1915A(a) and 28 U.S.C. § 1915(e)(2)).
Further, the court has found “that Plaintiff's prior filings all constitute strikes for the purposes of § 1915(g).” Jesus Christ v. Pennsylvania, 2022 WL 4111862, at *2. Thus, it is uncontested that Smith's extensive history of frivolous litigation has now resulted in three strikes against this prisoner-plaintiff. Therefore, Smith 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 Aon 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) compels denial of in forma pauperis status and dismissal of in forma pauperis lawsuits unless the inmate alleges that he or she Ais under imminent danger of serious physical injury.” 28 U.S.C. § 1915(g). With respect to this specific statutory exception, it is clear that:
The clause Aunless 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 Aimminent 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 v. McKelvie, 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 Afactual 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 (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 v. City of Philadelphia, 331 Fed.Appx. at 900.
Judged by these benchmarks, Smith's current motion for leave to proceed in forma pauperis should be denied and his pro se complaint should be dismissed without prejudice to refiling when and if Smith pays the filing fee required by law. At the outset, it is evident that the first prerequisite for the application of '1915(g)'s gatekeeping rule is fully met here, in that Smith now has had three prior federal lawsuits dismissed Aon 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). Thus, Smith undeniably comes before this Court with Athree strikes,” and is subject to' 1915(g)'s rule of preclusion.
Nor can Smith avail himself in this case of the “imminent danger” exception to 1915(g)'s preclusive effect. Smith has not pleaded in his complaint or amended complaint that he is in imminent danger of serious bodily injury as a result of Dr. Roger's competency evaluation, and the nature of his claims-which relate to a September 2022 competency evaluation conducted by the doctor-simply do not lend themselves to credible assertions of imminent bodily harm. Since A[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,” and this Court can justifiably discredit any belated Afactual claims of imminent danger [as] 'clearly baseless,' i.e., allegations that are fantastic or . . . rise to the level of the 'irrational or wholly incredible,' ” Gibbs v. Cross, 160 F.3d 962, 967 (3d Cir. 1998), Smith's current allegations in this particular lawsuit which essentially entail a dispute regarding a 2022 mental competency evaluation do not constitute the type
of 'imminent danger of serious physical injury” contemplated under § 1915(g).
In sum, all the statutory prerequisites for imposition of § 1915(g)'s bar against further in forma pauperis litigation by this pro se prisoner-plaintiff are fully met here. Therefore, consistent with § 1915(g)'s statutory mandate, it is recommended that Smith's motion for leave to proceed in forma pauperis be DENIED and this complaint should be DISMISSED.
III. Recommendation
Accordingly, for the foregoing reasons, pursuant to 28 U.S.C. § 1915(g), IT IS RECOMMENDED that the Plaintiff's motion for leave to further proceed in forma pauperis be DENIED and that the Plaintiff's in forma pauperis complaint be dismissed without prejudice to refiling when and if Smith pays the filing fee required by law. IT IS FURTHER RECOMMENDED that Smith's motion to stay, (Doc. 22), which is actually a response in opposition to the court's show cause order, 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.