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Brown v. State


November 16, 2009


The opinion of the court was delivered by: Judge Vanaskie



This pro se civil rights action was initiated by Derrick L. 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. (Dkt. Entry # 3.) For the reasons set forth below, Brown's action will be dismissed, without prejudice, pursuant to the screening provisions of 28 U.S.C. § 1915(g).*fn1

Named as Defendants are the State of Tennessee;*fn2 Shelby County, Tennessee; the City of Memphis, Tennessee; and numerous officials, departments, and programs affiliated with those entities, including Governor Phil Bredesen, Shelby County Sheriff Mark Lutrell, and Mayors Willie Herrington and A.C. Wharton, Jr.*fn3

In an affidavit which accompanies the Complaint, Plaintiff asserts that while housed in administrative segregation at the Shelby County Criminal Justice Complex during February 2002, he was notified of his father's death. Brown describes his father as being "an active and possibly high-ranking member of the Mason brotherhood." (Dkt. Entry # 2 at 10.) Brown adds that his father's will "left Plaintiff an inheritance" which "consisted of a large undisclosed amount of monetary funds, houses, and property." Id. Plaintiff claims that because he had previously refused to become part of the Mason brotherhood, family members and unidentified members of the Mason brotherhood conspired with the Defendants "to harass, impugn, false[ly] imprison, retaliate, destroy, kill and murder [him]" to prevent him from collecting his inheritance. (Id. at 11.) Brown alleges that the conspirators arranged to have him "falsely arrested on frivolous, bogus, and trumped up drug charges" in 2004 and 2006. (Id. at 12.) According to Plaintiff, his most recent unwarranted arrest resulted in unlawful federal and state convictions.*fn4 The Complaint seeks an award of compensatory and punitive damages as well as declaratory and injunctive relief, including Plaintiff's immediate release.*fn5 Discussion

Pursuant to 28 U.S.C. § 1915(g), a federal civil action by a prisoner proceeding informa pauperisis 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.

While incarcerated, Plaintiff 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)(suaspontedismissal 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 recently recognized that it concurs 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). See Brown v. Lappin, et al., Civil No. 3:CV-09-1732, slip op. at 3 (M.D. Pa. Nov. 10, 2009)(Vanaskie, J.)(Dkt. Entry # 10.)

As detailed above, the unconstitutional conduct alleged in Brown's pending action does not place this inmate 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); McCarthy v. Warden, USP-Allenwood, 2007 WL 2071891 *2 (M.D. Pa. July 18, 2007)(Caldwell, J.) (the danger of serious physical injury must be about to occur at any moment or impending at the time the complaint was filed, not at the time of the alleged incident). It is particularly noted that none of the named Defendants are personally involved in the supervision and care of Brown at USP-Lewisburg. Accordingly, this action will be dismissed under § 1915(g).

Since the dismissal of Brown's action is being entered under § 1915(g) and he is barred from proceeding in forma pauperis, the Administrative Order previously issued in this matter on November 4, 2009 (Dkt. Entry # 5) will be vacated and Plaintiff's in forma pauperis application (Dkt. Entry # 3) will be denied.*fn6 An appropriate Order will enter.*fn7


NOW, THIS 16th 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 Administrative Order (Dkt. Entry # 5) previously issued in this matter on November 4, 2009 is VACATED.

3. Plaintiff's request to proceed in forma pauperis (Dkt. Entry # 3) is DENIED.

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

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

6. The Clerk of Court is directed to send a copy of this Order to the Warden of USP-Lewisburg.

Thomas I. Vanaskie United States District Judge

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