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Liverman v. Gubernik

September 21, 2010

DARRYL LIVERMAN, PLAINTIFF,
v.
HARRIS GUBERNIK, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Slomsky, J.

OPINION AND ORDER

I. INTRODUCTION

Before the Court are Defendant Harris Gubernick's Motion in Opposition to Plaintiff's Application to Proceed In Forma Pauperis and Memorandum of Law in Support of the Motion (Civ. No. 10-1161, Doc. Nos. 7, 8; Civ. No. 10-2049, Doc. Nos. 5, 6; Civ. No. 2500, Doc. Nos. 5, 6; Civ. No. 10-2558, Doc. Nos. 7, 8). Plaintiff has filed a Motion in Opposition to Defendant's Motion (Civ. No. 10-1161, Doc. No. 10 (hereinafter "Pl. Mot. Opp.")).*fn1

Plaintiff initiated his four above-captioned cases on March 16, 2010, May 4, 2010, May 21, 2010, and May 26, 2010, by filing a Complaint and a Motion for Leave to Proceed in Forma Pauperis in each one. In his Complaints, Plaintiff alleges claims arising under 42 U.S.C. § 1983 for a violation of various constitutional rights. In the four cases, Plaintiff's initial Motion to Proceed in Forma Pauperis was denied for failure to comply with filing requirements.

Thereafter, Plaintiff resubmitted his in forma pauperis request in each of the above-captioned cases. Defendant Gubernick has filed a Motion in Opposition and Memorandum of Law in each case, asserting that Plaintiff falls under the "three strikes" provision of 28 U.S.C. § 1915(g), that Plaintiff's Complaints do not allege that he is in imminent danger of serious physical injury, and for these reasons Plaintiff should be precluded from proceeding in forma pauperis. Plaintiff has filed a Motion in Opposition to Defendant's Motion, asserting that he does not have "three strikes." A hearing on the Motions was held on August 11, 2010, where Plaintiff was required to appear and show cause why:

(1) Plaintiff should be permitted to proceed in forma pauperis, in view of the fact he has filed more than three actions which have been dismissed on prior occasions as frivolous, malicious or for failure to state a claim and he has failed to allege in his Complaint that he is in imminent danger;

(2) The above-captioned civil cases should not be dismissed as frivolous, malicious or for failure to state a claim; and

(3) A pre-filing injunction should not be issued which would bar Plaintiff from filing in the future any civil action in this Court without first seeking permission of the Court to file the action, in view of the fact Plaintiff has filed more than three actions which have been dismissed on prior occasions as frivolous, malicious or for failure to state a claim.

For the following reasons, the Court will deny Plaintiff's requests to proceed in forma pauperis. Additionally, the Court will dismiss the Complaints filed in civil actions numbered 10-1161, 10-2049 and 10-2500 with prejudice, dismiss the Complaint filed in civil action number 10-2558 without prejudice, and will impose a pre-filing injunction on Plaintiff.

II. FACTUAL BACKGROUND

A. Civil Action No. 10-1161

Plaintiff filed this civil action pursuant to 42 U.S.C. § 1983 against: Harris Gubernick, Director of Corrections of Bucks County Correctional Facility (BCCF); Terrence Moore, Warden of BCCF; Lillian Budd, Assistant Warden of BCCF; Clifton Michell, Deputy Warden of BCCF; Charles Martin, Commissioner and Prison Oversight Board Member; Diane Ellis-Marseglia, Commissioner and Prison Oversight Board Member; James Cowley, Commissioner and Prison Oversight Board Member; Tom Noon, Case Manager at BCCF; Stephen Shantz, Chief "AD"*fn2 and Prison Oversight Board Member; Dale Harding,Case Manager Supervisor; Sean Ryan, Chief "PO" and Prison Oversight Board Member; Ray McHugh, Controller and Prison Oversight Board Member; Susan Devlin-Scott, President Judge and Prison Oversight Board Member; and Edward Donnely, Sheriff and Prison Oversight Board Member.

In his Second Amended Complaint (Doc. No. 5), Plaintiff alleges that he was committed to BCCF on February 23, 2010 and housed in a unit containing inmates and pretrial detainees. Plaintiff asserts that the housing of pretrial detainees with convicted inmates is a violation of his rights under the Eighth Amendment to the United States Constitution not to be subjected to cruel and unusual punishment. Plaintiff alleges he reported this violation to Defendant Budd on February 26, 2010, and requested she correct the situation. Defendant Budd allegedly did not respond to Plaintiff's request. Plaintiff then filed a grievance with Defendant Moore, who also refused to correct the situation. Plaintiff then filed an appeal to Defendant Gubernick.

Plaintiff alleges that it states on the prison grievance form that, once filed, the form is provided to Prison Oversight Board Members. Plaintiff alleges that members of the Prison Board "received official notice of the constitutional violation prohibiting cruel and unusual punishment which forbids the housing of convicts and pre-trial detainees on the same housing units." (Doc. No. 5 at 3.) Plaintiff further alleges that "the Prison Board Members acquiesced to the violation by failing to have it corrected after being made aware of the violation." (Id.) Plaintiff alleges that the refusal of Defendants to correct the situation constitutes "deliberate indifference." (Id.)

B. Civil Action No. 10-2049

Plaintiff filed this civil action pursuant to 42 U.S.C. § 1983 against the same Defendants sued in Civil Action No. 10-1161. In his Second Amended Complaint (Doc. No. 7), Plaintiff alleges that he was placed in the restrictive housing unit of BCCF on May 1, 2010, and while housed there was denied access to law books and copying services in violation of his constitutional right to correspond with and have access to the court.

Plaintiff alleges that Defendant Budd is the assistant warden of inmate services and is denying him access to law books and copying services, and that Defendant Mitchell is the deputy warden of security and will not allow "PO's" to escort him to the law library from restrictive housing.

Plaintiff filed a grievance with Defendant Moore, who responded that Plaintiff cannot have access to law books because Plaintiff is assigned to the restrictive housing unit. Plaintiff asserts that Defendant Gubernick has been informed of the constitutional violation and has refused to correct it. Because the grievance form states that all information on the form is turned over to Prison Oversight Board Members, Plaintiff alleges Board Members have knowledge of the constitutional violation and acquiesced in the violation by failing to order it corrected. Finally, Plaintiff alleges that Defendants are continuing to show deliberate indifference to his constitutional right to correspond with the court.

As an exhibit to his Complaint, Plaintiff attached the grievance form he filed with prison officials. On the form, Plaintiff states, "I am in RHU and my constitutional right to be provided ink pens to draft legal documents is being denied. You are obligated by supreme ct law to provide ink pens. Bounds v. Smith, 430 U.S. 817, 824-25, 97 S.Ct. 144 (1977) . . . the ink pen I am using now is almost out of ink." In another exhibit, Plaintiff notes, "Pg 16 of Inmate Handbook states we can directly ask officers for stationary supplies. Therefore, you are to keep pens, paper and envelopes supplied in RHU, so we can obtain them as needed."

C. Civil Action No. 10-2500

Plaintiff filed this civil action pursuant to 42 U.S.C. § 1983 against the same Defendants sued in Civil Actions No. 10-1161 and 10-2049, as well as Joan Crowe, Medical Director of BCCF, and David Davis, Medical Doctor at BCCF. In his Amended Complaint (Doc. No. 3), Plaintiff complains that on May 1, 2010, he "submitted a request to medical to be seen for painful callouses on [his] feet." (Doc. No. 3 at 3.) Plaintiff states he was not seen, and that he filed a grievance on May 5, 2010. Defendant Moore responded to Plaintiff's grievance, indicating that he would be seen on May 24, 2010. Plaintiff alleges he was seen but not treated. Plaintiff further alleges that he was seen by Dr. Davis on June 9, 2010, and "he still refuses to recommend treatment to have my callouses removed." (Id.) Plaintiff alleges his callouses are "so painful that I cannot stand for any period of time without pain." (Id.)

Plaintiff alleges that Defendant Budd and all members of the Prison Oversight Board were informed of the constitutional violation and have failed to take action to correct it. Plaintiff alleges Defendants Crowe and Gubernick were also informed of the violation and failed to order it corrected. Plaintiff also alleges that prison officials and medical department personnel are showing "deliberate indifference to his medical needs." (Id.)

D. Civil Action No. 10-2558

Defendant filed this final civil action pursuant to 42 U.S.C. § 1983 against Sean Ryan, Chief PO,*fn3 Stephanie Melo, PO, James Cawley, Commissioner, Charles Martin, Commissioner, and Diane M. Ellis-Marseglia, Commissioner. In his Amended Complaint (Doc. No. 3), Plaintiff asserts that on February 24, 2010, his Fourteenth Amendment right to due process was violated by Stephanie Melo, PO, at the preliminary hearing for a violation of his parole. Plaintiff claims he was not given a written decision containing the facts and reasons for finding probable cause that he violated parole. Plaintiff further alleges he was not given the right to confront witnesses providing adverse information. Plaintiff alleges Defendant Melo "moved my final revocation hearing up from April 24, 2010, pending a competency evaluation -- after she received evaluations, she then again postponed hearing until outcome of new charge." (sic) (Doc. No. 3 at 3.)

Plaintiff asserts he informed Defendant Melo's supervisor on June 1, 2010 of the constitutional violation and asked him to correct it, and that he has not done so. Plaintiff alleges that Commissioners Martin, Cawley and Ellis-Marseglia hire the POs. Plaintiff asserts that "the Probation and Parole Office of Bucks County is viciously and deliberately denying my chance at liberty as well as showing deliberate indifference to my 14th Amendment constitutional right to due process." (Id.)

III. DISCUSSION

In the Prison Litigation Reform Act of 1995 (PLRA), Congress changed the minimum requirements to be met by indigent prisoners who file civil actions. In re: Alea, 286 F.3d 378, 380 (6th Cir. 2002). Pursuant to 28 U.S.C. § 1915(b)(1), the traditional waiver of filing fees for prisoners with pauperis status was replaced with a requirement that all prisoners pay the required filing fee with periodic deductions from their prisoner account. Id. In addition, § 1915(g) imposes a ...


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