United States District Court, M.D. Pennsylvania
October 19, 2005.
DHANNIELL AQUINO, SR.,[fn1] Plaintiff,
ED SAUDI, ET AL., Defendants.
The opinion of the court was delivered by: THOMAS VANASKIE, Chief Judge
*fn1 As indicated by Plaintiff in the caption of his complaint,
he also goes under the alias names of Dhanny Vega and Daniel
Vega. (Dkt. Entry 1, Compl. at 1.) He has filed numerous actions
in this Court under both of these names.
Plaintiff, Dhanniell Aquino, Sr., an inmate at the State
Correctional Institution at Houtzdale (SCI-Houtzdale),
Pennsylvania, has brought this action under 42 U.S.C. § 1983.
Named as Defendants are various individuals employed at the Siena
Halfway House, Harrisburg, Pennsylvania. Among those listed as
Defendants are two Doe defendants. Aquino alleges that, while at
the Siena Halfway House, Defendants forced him to take medication
to which he is allergic, triggering his diabetes as well as
causing other injuries. He also alleges violations of his First
Amendment right to free exercise of religion. Simultaneous with
the filing of his complaint, Aquino submitted an application to
proceed in forma pauperis in this matter. (Dkt. Entry 2.) For the reasons outlined below, Aquino's
complaint will be dismissed, without prejudice, pursuant to
28 U.S.C. § 1915(g). His motion to proceed in forma pauperis
II. Standard of Review
The Prison Litigation Reform Act of 1996 ("PLRA"), in an effort
to halt the filing of meritless inmate litigation, enacted what
is commonly referred to as the "three strikes" rule. Codified at
28 U.S.C. § 1915(g), the "three strikes" rule provides that an
inmate who has had three prior actions or appeals dismissed as
frivolous, malicious, or for failing to state a viable claim may
not proceed in a civil action in forma pauperis "unless the
prisoner is in imminent danger of serious physical injury." See
28 U.S.C. § 1915(g); Abdul-Akbar v. McKelvie, 239 F.3d 307, 312
(3d Cir. 2001) (en banc), cert. denied, 533 U.S. 953 (2001).
The "imminent danger" exception to § 1915(g)'s "three strikes"
rule is available "for genuine emergencies," where "time is
pressing" and "a threat . . . is real and proximate." Lewis v.
Sullivan, 279 F.3d 526, 531 (7th Cir. 2002).
Dismissals of actions entered prior to the effective date of
the PLRA are counted toward the "three strikes." See Keener v.
Pennsylvania Board of Probation and Parole, 128 F.3d 143,
1444-45 (3d Cir. 1997) (holding that dismissals of actions as
frivolous before 1996 "are included among the three that
establish the threshold for requiring a prisoner to pay the full
docket fees unless the prisoner can show he or she is `under
imminent danger of serious physical injury'"). The "three
strikes" provision does not bar disqualified inmates from filing
additional actions, but it does deny them the opportunity to proceed in forma
pauperis and requires them to pay the required filing fee.
Since July of 1995 Plaintiff has initiated twenty-six (26)
civil actions in this Court. Many of these actions were dismissed
as legally frivolous or for failure to state a claim upon which
relief can be granted. The following are three of his later
actions dismissed on this basis: Vega v. Dauphin County Prison,
et al., Civil No. 3:CV-96-0154 (M.D. Pa. August 27, 1996)
(Vanaskie, C.J.); Vega v. Zugay, et al., 3:CV-96-0546 (M.D. Pa.
November 27, 1996) (Vanaskie, C.J.); Vega v. Bishop, et al.,
3:CV-96-0591 (M.D. Pa. February 18, 1997) (Vanaskie, C.J.). These
dismissals qualify as "strikes" for purposes of determining
whether Plaintiff can proceed in forma pauperis in this
As for the present action, there is no indication that
Plaintiff is in danger of imminent "serious physical injury." The
incidents of which he complains occurred at the Siena Halfway
House, and Plaintiff is now confined at SCI-Houtzdale.
Consequently, the above-captioned action will be dismissed under
§ 1915(g). An appropriate Order follows. ORDER
NOW, THIS 19th DAY OF OCTOBER, 2005, for the reasons set
forth in the accompanying Memorandum, IT IS HEREBY ORDERED
1. Plaintiff's motion to proceed in forma
pauperis (Dkt. Entry 2) is denied as moot.
2. Plaintiff's complaint is dismissed, without
prejudice, pursuant to 28 U.S.C. § 1915(g).
3. The Clerk of Court is directed to close this case.
4. Any appeal from this Order will be deemed
frivolous and not taken in good faith. See
28 U.S.C. § 1915(a).
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