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Brown v. Lappin


November 10, 2009


The opinion of the court was delivered by: Judge Vanaskie



This pro se civil rights complaint was initiated by Derrick Lakeith Brown, an inmate presently confined at the United States Penitentiary, Lewisburg, Pennsylvania (USP-Lewisburg). Along with his complaint, Brown has submitted an application requesting leave to proceed in forma pauperis. For the reasons set forth below, Brown's complaint will be dismissed, without prejudice, pursuant to the screening provisions of 28 U.S.C. § 1915(g).*fn1

Named as Defendants are Director Harley Lappin of the Federal Bureau of Prisons and numerous additional federal corrections officials, including employees at Plaintiff's prior place of confinement, the United States Penitentiary, Tucson, Arizona (USP-Tucson) and USP-Lewisburg. The gist of Plaintiff's complaint is that he was subjected to a retaliatory transfer from USP-Tucson to USP-Lewisburg and has been subjected to unwarranted placement in the Special Management Units (SMU) at both prisons. His Complaint seeks monetary and injunctive relief.*fn2 Discussion

The Prison Litigation Reform Act of 1996 (PLRA) enacted what is commonly referred to as the three strikes provision. Codified at 28 U.S.C. § 1915(g), it directs that a federal civil action by a prisoner proceeding informapauperisis barred if he or she: 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.

Brown, while incarcerated, previously initiated the following civil actions which were dismissed as frivolous by the United States District Court for the Western District of Tennessee:Brown v. Memphis Police, No. 2:01-2868 (Nov. 13, 2001)(suasponte dismissal under 28 U.S.C. § 1915(e)(2)(B)(ii) and (iii)); Brown v. Shelby County, et al., No. 2:02-2365 (June 19, 2002)(dismissal on grounds that § 1983 complaint is frivolous); Brown v. Shelby County, et al., No. 2:02-2366 (June 19, 2002)(suaspontedismissal under 28 U.S.C. § 1915(e)(2)(B)(ii) and (iii)); and Brown v. Nurse Brown, et al., No. 2:02-2368 (June 27, 2002)(dismissal with observation that Brown has three dismissals of cases as frivolous and thus is subject to § 1915(g)). This Court agrees with the determination announced by the Western District of Tennessee in the last-cited case, i.e., that the above enumerated dismissals constitute three strikes for the Plaintiff as contemplated under § 1915(g).

The only exception to the three strikes requirement is where the alleged unconstitutional conduct places the inmate plaintiff in danger of imminent "serious physical injury" at the time his complaint was filed. SeeAbdul-Akbar v. McKelvie, 239 F.3d 307, 312 (3d Cir. 2001). It must be shown that "the danger of serious physical injury was imminent at the time the complaint was filed, not at the time of the alleged incident." McCarthy v. Warden, USP-Allenwood, 2007 WL 2071891 *2 (M.D. Pa. July 18, 2007)(Caldwell, J.). Past danger is insufficient, rather, the danger must be about to occur at any moment or impending. Seeid.

In this case, the alleged unconstitutional conduct did not place this inmate in danger of imminent serious physical injury at the time this matter was filed. Accordingly, this action will be dismissed under § 1915(g). An appropriate Order will enter.


NOW THIS 10th DAY OF NOVEMBER, 2009, in accordance with the accompanying Memorandum, IT IS HEREBY ORDERED THAT:

1. Plaintiff's complaint is DISMISSED WITHOUT PREJUDICE as barred by 28 U.S.C. § 1915(g).

2. The Clerk of Court is directed to CLOSE the case.

3. Any appeal from this Order will be deemed frivolous, without probable cause and not taken in good faith.

Thomas I. Vanaskie United States District Judge

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