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Milhouse v. Sage

United States District Court, M.D. Pennsylvania

August 18, 2014

JESSICA SAGE, et al., Defendants


SYLVIA H. RAMBO, District Judge.

I. Background

On June 2, 2014, Plaintiff Kareem Hassan Milhouse, an inmate currently incarcerated at the United States Penitentiary in Lewisburg, Pennsylvania ("USP-Lewisburg"), filed this pro se Bivens [1]-styled complaint pursuant to 28 U.S.C. § 1331. (Doc. 1.) Named as Defendants are the United States, the Federal Bureau of Prisons ("BOP"), and various prison officials from USP-Lewisburg. In the complaint, Plaintiff claims that Defendants violated his constitutional rights by denying him treatment for his mental illness. Along with his complaint, Plaintiff has submitted a motion requesting leave to proceed in forma pauperis. (Doc. 4.) The BOP has filed a response to Plaintiff's motion, (Doc. 10), and Plaintiff has replied, (Doc. 13). For the reasons set forth below, the complaint will be dismissed without prejudice pursuant to the provisions of 28 U.S.C. § 1915(g).

II. Discussion

The Prison Litigation Reform Act of 1996 ("PLRA"), in an effort to halt the filing of frivolous inmate litigation, enacted what is commonly referred to as the "three strikes" provision. 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); see also Abdul-Akbar v. McKelvie, 239 F.3d 307, 312 (3d Cir. 2001) (en banc). 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). "Imminent danger" is assessed not at the time of the alleged incident, but rather at the time the complaint is filed. Abdul-Akbar, 239 F.3d at 312.

Dismissals of actions entered prior to the effective date of the PLRA are counted toward the "three strikes" referred to in 28 U.S.C. § 1915(g). See Keener v. Pa. Bd. of Prob. & Parole, 128 F.3d 143, 144-45 (3d Cir. 1997) (holding that dismissals based on frivolousness 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 s/he 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 under in forma pauperis, requiring inmates to pay the full filing fee prior to commencing suit.

Here, there is no question that Plaintiff has filed no less than four (4) civil actions or appeals in this court, the Eastern District of Pennsylvania, the Third Circuit Court of Appeals, and courts in other jurisdictions, since 1996. Many of these actions were dismissed on grounds that they were frivolous or failed to state a claim upon which relief may be granted. See Milhouse v. Levi, No. 07-4048 (3d Cir. Mar. 26, 2008); Milhouse v. Arbasak, et al., Nos. 09-2709 & 2858 (3d Cir. Apr. 28, 2010); Milhouse v. Bledsoe, et al., Civ. No. 1:10-CV-0053 (M.D. Pa. Oct. 6, 2010); Milhouse v. Levi, Civ. No. 2:09-CV-5363 (E.D. Pa. Nov. 24, 2010); Milhouse v. Jordan, et al., Civ. No. 1:09-CV-1365 (M.D. Pa. Feb. 14, 2011). In addition, Plaintiff does not dispute the fact that he has brought three or more actions or appeals in the federal courts that were dismissed as frivolous, malicious, or for failure to state a claim upon which relief may be granted. ( See Doc. 4.) See also Milhouse, v. Holt, Civ. No. 1:12-CV-1286 (M.D. Pa. Aug. 1, 2012) (complaint dismissed without prejudice due to Plaintiff's three strikes); Milhouse v. O'Brien, Civ. No. 1:14-CV-0016 (N.D. W.V. May 9, 2014) (order adopting report and recommendation for dismissal of complaint without prejudice due to Plaintiff's three stikes).

Turning to Plaintiff's present action, in his complaint Plaintiff alleges that, at some point possibly in 2008, a federal judge in the Eastern District of Pennsylvania recommended that Plaintiff receive mental health treatment. (Doc. 1 at 2.) Further, he alleges that he currently has a mental health diagnosis of depression, an Axis I mental illness, [2] and that he has attempted suicide twice, in February and April of 2014, respectively. ( Id. at 2.) Plaintiff claims, however, that, since he arrived at USP-Lewisburg on April 28, 2014, he has not been seen by any psychologists, despite his mental health diagnosis. ( Id. at 2, 7.) He further claims that, while the psychology staff did several rounds through his housing unit on May 1, 8, 15, and 21, 2014, no one stopped to talk to him when he requested assistance. ( Id. at 3.) He also claims that various administrative staff failed to respond to his grievances regarding medical treatment for his mental illness. ( Id. at 4-5.)

In his application to proceed in forma pauperis, Plaintiff has provided the following details as to why he is "under imminent danger of serious physical injury":

Petitioner has a current mental illness diagnosis of depression which is a Axis 1 mental health illness that [can] cause death untreated. Plaintiff is not currently on medication nor have he received no therapy sessions nor new medication although it's a substantiated history that the last medication did not help and Plaintiff attempted suicide.

(Doc. 4 at 2.)

The BOP's response to Plaintiff's allegation of imminent danger indicates that Plaintiff arrived at USP-Lewisburg on April 28, 2014. (Doc. 10 at 2.) On May 14, 2014, Dr. O'Shaughnessy performed a Psychology Services Transfer Intake Screening of Plaintiff. ( Id.; Doc. 10-1, O'Shaughnessy Decl.) Dr. O'Shaughnessy noted that Plaintiff has an extensive history of contacts with Psychology Services while incarcerated, including suicide risk assessments, medication evaluations, and sexual abuse interventions. ( Id.; Doc. 10-1 at 4.) Those claims have been determined to be unfounded. (Doc. 10 at 2.) In addition, it was noted that Plaintiff has management issues in terms of his behavior, but does not have any Axis I mental health concerns. ( Id. at 3; Doc. 10-1 at 4.) Rather, Plaintiff has a diagnosis of an Axis II antisocial personality disorder. (Doc. 10 at 3; Doc. 10-1 at 6.) Further, Plaintiff has been designated as a "care level I mental health" inmate, requiring the lowest level of mental health services. (Doc. 10 at 2; Doc. 10-1 at 4.)

According to the BOP, Axis II disorders refer to personality disorders that, for the most part, manifest significant impairment in how someone relates to the world. (Doc. 10 at 3.) Only those with long-term rigid, inflexible, pervasive, and exaggerated traits can be diagnosed with such a personality disorder. ( Id. ) Further, another important distinction is that people with personality disorders do not perceive their problems to be related to themselves. ( Id. at 4.) They are "ego-syntonic, " meaning they say, "There's nothing wrong with me. Everyone else is the problem!" ( Id. ) In addition, Axis II personality disorders cannot be cured. ( Id. ) Treatment generally does not include medication; rather, counseling and other non-pharmacologic interventions are used. ( Id. )

On June 2, 2014, Plaintiff was seen by Dr. Jessica Sage in connection with his allegations of an assault on May 8, 2014. (Doc. 10 at 3; Doc. 10-1 at 6.) Plaintiff did not display any overt symptoms of acute emotional distress or trauma-related mental health problems at the evaluation. (Doc. 10-1 at 6.) In addition, he specifically stated that he was "maintaining" and denied any psychological concerns or issues. ( Id. ) He was well kept, alert, and displayed no signs of fatigue. ( Id. ) Further, his thought process was linear ...

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