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Ball v. Famiglio

United States District Court, M.D. Pennsylvania

December 17, 2014

DAWN BALL, Plaintiff,
v.
DR. FAMIGLIO, et al., Defendants

Submitted this 17th day of December, 2014.

Dawn Ball, Plaintiff, Pro se, Muncy, PA USA.

For Dr. Famiglio, Dr. Gothural, Dawn Werner, Dr. Stone, Defendants: Jaime B. Boyd, Chief Counsel's Office, Pennsylvania Department Of Corrections, Mechanicsburg, PA USA; Kathryn M. Kenyon, Meyer Unkovic & Scott LLP, Pittsburgh, PA.

For Lt. Hummel, Lt. Neece, Lt. Barto, Gloria Diggan, Ms. D'Addio, Psychologist, Judy Rowe, Defendants: Debra S. Rand, Jaime B. Boyd, Chief Counsel's Office, Pennsylvania Department Of Corrections, Mechanicsburg, PA USA; Kathryn M. Kenyon, Meyer Unkovic & Scott LLP, Pittsburgh, PA.

For Jane Doe, Defendant: Kathryn M. Kenyon, Meyer Unkovic & Scott LLP, Pittsburgh, PA USA.

Martin C. Carlson, United States Magistrate Judge. Judge Kane.

REPORT AND RECOMMENDATION

Martin C. Carlson, United States Magistrate Judge.

I. Statement of Facts and of the Case

A. Dawn Marie Ball's Litigation History

This case, which comes before us on a motion to revoke Ball's in forma pauperis status, typifies that sad circumstances of Dawn Ball's life, a life which is now entirely marked by unreasoned anger and a cynical desire to use litigation as a vexatious vehicle to lash out at others. Indeed, this case reminds us that in many ways Dawn Ball's current circumstances inspire both profound sorrow and concern.

Dawn Ball is an inmate housed in the Restricted Housing Unit at the State Correctional Institution (SCI) Muncy, who by her own account suffers from a cascading array of severe mental illnesses, and who has candidly acknowledged that she is profoundly disturbed. Ball v. Beard, No. 1: 09-CV-845 (Doc. 42, pp.6-7). Furthermore, Ball is also an inmate who has reported to the Court that she engages in multiple episodes of destructive, self-defeating and senseless behavior.

Much of this institutional misconduct is marked by disturbing, excretory behavior. Indeed, a constant refrain throughout many of Ball's lawsuits is her fascination with her own bodily wastes. For example, recurring themes in Ball's lawsuits include Ball's penchant for smearing feces on herself, her clothes, her property, and her cell, as well as her destruction of her own clothing, and her use of her clothing to plug her toilet and flood her cell with water and human waste. Ball is also, by her own admission, an inmate with a propensity for sudden, explosive rages, as illustrated by the civil complaint which she has filed Ball v. Barr, No.1: 11-CV-2240 (M.D.Pa.). In this complaint, Ball describes an episode in which a discussion regarding the aesthetic qualities of a piece of cornbread escalated in a matter of moments into a profanity-laced wrestling match over a food tray.

Ball's bizarre and self-destructive behavior is also marked by repeated acts of destruction of her own clothing. As we have previously noted:

One recurring theme in this array of lawsuits has been a disputatious cycle of conflict between Ball and her jailers. As part of this cycle of behavior Ball has been cited for misconduct, oftentimes involving destruction or misuse of her prison garb, which has on occasion been found to have plugged the toilet in her cell, resulting in cell flooding. Prison officials have then placed Ball on clothing restrictions, and cited her for misconduct. As result of these clothing restrictions, Ball has lost her entitlement to a prison jumpsuit. Nonetheless when hearings have been scheduled on Ball's misconduct citations which often relate to the destruction or misuse of jumpsuits, she has demanded a jumpsuit before attending any hearing, or has insisted that the hearing be conducted at her cell. Prison officials have then treated Ball's demands as tantamount to a refusal to appear, and have conducted the disciplinary hearing in her absence. Ball, in turn, has sued prison staff, asserting that they have denied her due process. This theme is a recurring refrain in Ball's litigation and is reflecting several lawsuits filed by Ball. . . . .

"> Ball v. Cooper, No. 1: 11 CV 1833, 2012 WL 2389763, at *3 (M.D. Pa. June 1, 2012) report and recommendation adopted, No. 1:11 CV 1833, 2012 WL 2389760 (M.D. Pa. June 25, 2012). See, e.g., Ball v. Oden, No. 1: 09 CV 847, 2012 WL 7162069, at *1 (M.D. Pa. Dec. 6, 2012) report and recommendation adopted, No. 1:09 CV 00847, 2013 WL 634024 (M.D. Pa. Feb. 20, 2013 ) Ball v. Sipe, No. 1: 11 CV 1830, 2012 WL 2389759, at *3 (M.D. Pa. May 31, 2012) report and recommendation adopted, No. 1:11 CV 1830, 2012 WL 2389901 (M.D. Pa. June 25, 2012): Ball v. Hill, 1: 09-CV-773, 2012 WL 4069748 (M.D.Pa. Aug.9, 2012) report and recommendation adopted, 1:09-CV-00773, 2012 WL 4069737 (M.D.Pa. Sept.17, 2012); Ball v. Famiglio, 1: 11-CV-1834, 2012 WL 1886676 (M.D.Pa. Mar.14, 2012) report and recommendation adopted, 1:11-CV-1834, 2012 WL 1886673 (M.D.Pa. May 23, 2012); Ball v. Sisley, 1: 11-CV-877, 2011 WL 7940267 (M.D.Pa. Dec.20, 2011) report and recommendation adopted, 1:11-CV-877, 2012 WL 1867276 (M.D.Pa. May 22, 2012).

Prior to revocation of her in forma pauperis privileges due to Ball's repeated abuse of those privileges, Ball was a prodigious federal court litigant, bringing numerous lawsuits based upon her perception of the events that take place around her in prison. Indeed, at various times Ball has had more than 25 lawsuits pending before this Court.[1] Sadly, though, Ball is also a prodigiously unsuccessful litigant, who has had numerous prior lawsuits dismissed either as frivolous, for failure to exhaust administrative remedies or on the grounds that the lawsuit failed to state a claim upon which relief could be granted. The history of repeated, frivolous and meritless litigation in federal court by this plaintiff has now led to court of appeals in 2013 to conclude that Ball was barred as a frivolous filer under 28 U.S.C. § 1915(g)'s " three strikes" rule from proceeding in forma pauperis in federal court in the future. Ball v. Famiglio, 726 F.3d 448, 451 (3d Cir. 2013) cert. denied, 134 S.Ct. 1547, 188 L.Ed.2d 565 (2014). Given this history angry, feckless litigation, lawsuits inspired by Ball's own sad, unreasoned and unreasoning self-destructive behavior in prison, we now consider the defendants' motion to revoke Ball's in forma pauperis status

B. Ball's Current Lawsuit

It is against this backdrop that Ball instituted the current lawsuit. In this pro se complaint, which Ball filed on October 4, 2011, the plaintiff initially named 11 defendants and recited a series of medical and scheduling complaints which she has against these prison staff.

At the outset, Ball alleged that four defendants--Lieutenants Hummel, Neese, Barto and Dr. Famiglio--refused and canceled eye appointments for her for two years. According to Ball, as a result of this failure to treat her eyes, " I'm losing my vision." (Doc. 1.) Ball further alleged that Lieutenant Hummel has also refused her other medical appointments in March and April, 2011. The nature of these medical appointments is not further described by Ball.

Ball's October 4, 2011, complaint then alleged that another defendant, Dawn Werner, had not ordered new glasses for the plaintiff, to replace a pair of glasses broken in September 2011. Ball further complained that a prison psychologist, defendant D'Addio, gave her medical records to a state hospital without her permission, and " told my private business to corrections officers." According to Ball this " private business" involved the fact that Ball " was going to have a pysch evaluation done for the court." (Id.)

Ball's October 4, 2011, complaint then leveled another allegation against Dr. Famiglio. This allegation, ironically, seemed to involve the doctor providing some extra degree of medical care to Ball. Specifically, Ball complained that the doctor has offered her skin lotion, and other medicines, if she refrained from signing up for sick calls, conduct that Ball describes as a " bribe." (Id.)

Ball further alleged that two corrections staff, Judy Rowe and Gloria Duggan, " made derogatory and slanderous statements against me on their grievance responses. They said I put my fingers in feces and smear it on [medical] requests which is not true." (Id.) Ball also contended that these medical scheduling staff, and another medical scheduler identified only as Jane Doe, improperly refused to handle her medical request forms because of these claims that Ball smears fecal material on the forms. (Id.)

In addition, Ball's complaint reflected that she has a concern that pap smear test results may reveal abnormalities, but that four defendants--Dr. Famiglio, Dr. Gothwal, Judy Rowe, and Gloria Duggan--" won't tell me the results or they say the results are fine and they are not." (Id.) On the basis this bald assertion by Ball that she did not believe medical staff when they told her she was fine, the plaintiff sought to sue these individual defendants. (Id.) Ball then sued each of the 11 named defendants, seeking injunctive and declaratory relief, as well as punitive and compensatory damages of $5, 000, 000 each. (Id.)

At the outset of this litigation, the defendants moved to dismiss Ball's complaint, a motion which was granted in large measure by this Court. Specifically, we found that only one assertion made by Ball in this complaint was not subject to dismissal for failure to state a claim upon which relief may be granted. Ball had alleged that four defendants--Lieutenants Hummel, Neese, Barto and Dr. Famiglio--had refused and canceled eye appointment for two years. According to Ball, as a result of this failure to treat her vision " I'm losing my vision." (Doc. 1.) We concluded that this assertion, if proven, would support an Eighth Amendment claim and, therefore, denied the defendants' motion to dismiss this particular claim, without prejudice to the filing of a fully documented summary judgment motion. (Doc. 101.)

At the same time that Ball filed this action in October 2011, she also sought leave to proceed in forma pauperis . (Doc. 2.) This motion for leave to proceed in forma pauperis, denied that Ball had previously had three or more cases dismissed, but went on to allege that Ball was under imminent danger of serious bodily injury because " I'm being refused medical care." Thus, liberally construed, Ball's motion for leave to proceed in forma pauperis advanced the same claim that lies at the heart of the sole remaining allegation in her complaint, allegations that she has been completely denied medical care for serious medical conditions over an extended period of time.

On the basis of these representations, we initially granted Ball leave to proceed in forma pauperis, (Doc. 7.), but the remaining defendants have now moved to revoke Ball's in forma pauperis status, citing a recent court of appeals ruling which concluded that Ball is barred as a frivolous filer under 28 U.S.C. § 1915(g)'s " three strikes" rule from proceeding in forma pauperis in federal court in the future. Ball v. Famiglio, 726 F.3d 448, 451 (3d Cir. 2013) cert. denied, 134 S.Ct. 1547, 188 L.Ed.2d 565 (2014). (Doc. 111.) This motion is fully briefed by the parties, (Docs. 112 and 114.), and is, therefore, ripe for resolution.

For the reasons set forth below, it is recommended that this motion to revoke in forma pauperis status be denied.

III. Discussion

A. 28 U.S.C. § 1915(g)-- The Legal Standard

Under the Prison Litigation Reform Act, this Court has an affirmative duty to screen and review prisoner complaints filed by inmates like Ball who seek leave to proceed in forma pauperis . 28 U.S.C. § 1915A. One aspect of this review, a review " designed to filter out the bad claims and facilitate consideration of the good, " Jones v. Bock, 549 U.S. 199, 204, 127 S.Ct. 910, 166 L.Ed.2d 798 (2007), entails ensuring that inmates who have abused this privilege in the past are not permitted to persist in further in forma pauperis litigation. Towards that end, Congress enacted 28 U.S.C. § 1915(g), which provides in pertinent part that:

In no event shall a prisoner bring a civil action or appeal a judgment in a civil action or proceeding under this section if the prisoner 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.

28 U.S.C. § 1915(g).

Congress enacted 28 U.S.C. § 1915(g) with the express purpose of " [d]eterring frivolous prisoner filings in the federal courts [a goal which] falls within the realm of Congress' legitimate interests." Abdul-Akbar v. McKelvie, 239 F.3d 307, 318-19 (3d Cir. 2001). With this goal in mind, it is well-settled that, " generally, a prisoner may not be granted IFP [ in forma pauperis ] status if, on three or more occasions, he brought an action that was dismissed as frivolous, " Brown v. City Of Philadelphia, 331 F.App'x 898, 899, (3d Cir. 2009), and inmates who attempt to bring such lawsuits in forma pauperis should have their complaints dismissed. Id.

In determining whether a particular inmate-plaintiff has had three prior dismissals, or " three strikes, " under § 1915(g), we look to the status of the plaintiff's prior litigation history at the time he filed the current lawsuit. Thus, only dismissals which were actually ordered at the time of the filing of the instant case are counted towards a " three strike" assessment under § 1915(g), and " [a] dismissal does not qualify as a 'strike' for § 1915(g) purposes unless and until a litigant has exhausted or waived his or her appellate rights. See Jennings v. Natrona County Det. Ctr. Med. Facility, 175 F.3d 775, 780 (10th Cir.1999); Adepegba v. Hammons, 103 F.3d 383, 387-88 (5th Cir.1996)." Lopez v. U.S. Dept. of Justice, 228 Fed.Appx. 218 (3d Cir. 2007). However, in assessing when a particular inmate plaintiff is subject to the gatekeeping provisions of § 1915(g), it is also clear that " lawsuits dismissed as frivolous prior to the enactment of the PLRA count as 'strikes' under § 1915(g). See Adepegba v. Hammons, 103 F.3d 383 (5th Cir.1996); Abdul-Wadood v. Nathan, 91 F.3d 1023 (7th Cir.1996); Green v. Nottingham, 90 F.3d 415 (10th Cir.1996)." Keener v. Pennsylvania Bd. of Probation & Parole, 128 F.3d 143, 144 (3d Cir. 1997).

The grounds of dismissal cited by the court in its dismissal orders are also significant in this setting. Section 1915(g) provides that the preclusive effect of this three strikes rule only applies where each of the prior cases " was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted." Id. Focusing on this statutory text, courts have held that a " dismissal based on a prisoner's failure to exhaust administrative remedies does not constitute a PLRA strike, unless a court explicitly and correctly concludes that the complaint reveals the exhaustion defense on its face and the court then dismisses the unexhausted complaint for failure to state a claim." Ball v. Famiglio, 726 F.3d 448, 460 (3d Cir. 2013) cert. denied, 134 S.Ct. 1547, 188 L.Ed.2d 565 (U.S. 2014). Similarly, a dismissal of an action " based on the immunity of the defendant, whether absolute or qualified, does not constitute a PLRA strike, including a strike based on frivolousness, unless a court explicitly and correctly concludes that the complaint reveals the immunity defense on its face and dismisses the unexhausted complaint under Rule 12(b)(6) or expressly states that the ground for the dismissal is frivolousness." Ball v. Famiglio, 726 F.3d 448, 463 (3d Cir. 2013) cert. denied, 134 S.Ct. 1547, 188 L.Ed.2d 565 (U.S. 2014)

Furthermore, case law construing § 1915(g) requires clarity regarding the grounds of dismissal before a dismissal order may count as a strike against a prisoner-plaintiff. As the United States Court of Appeals for the Third Circuit has observed: " a strike under § 1915(g) will accrue only if the entire action or appeal is (1) dismissed explicitly because it is 'frivolous, ' 'malicious, ' or 'fails to state a claim' or (2) dismissed pursuant to a statutory provision or rule that is limited solely to dismissals for such reasons, including (but not necessarily limited to) 28 U.S.C. § § 1915A(b)(1), 1915(e)(2)(B)(I), 1915(e)(2)(B)(ii), or Rule 12(b)(6) of the Federal Rules of Civil Procedure." Byrd v. Shannon, 715 F.3d 117, 126 (3d Cir. 2013). Thus, a summary judgment dismissal of an action typically will not count as a strike under § 1915(g), unless the summary judgment decision, on its face, dismissed the action as frivolous malicious or for failure to state a claim. Parks v. Samuels, 540 F.App'x 146, 150 (3d Cir. 2014) citing Blakely v. Wards, 738 F.3d 607 (4th Cir.2013) (en banc).

Thus, by its terms, § 1915(g):

[S]peaks of possible strikes only in terms of " an action or appeal ... that was dismissed" on one of the enumerated grounds, 28 U.S.C. § 1915(g). Thus, " [u]nder the plain language of the statute, only a dismissal may count as a strike, not the affirmance of an earlier decision to dismiss." Jennings v. Natrona Cnty. Det. Center Med. Facility, 175 F.3d 775, 780 (10th Cir.1999). Also, . .., " [t]he choice of the word 'dismiss' rather than 'affirm' in relation to appeals was unlikely an act of careless draftsmanship, " but rather may be " most plausibly understood as a reference to section 1915(e)(2), which requires the court to ' dismiss the case at any time if the court determines that ... the action or appeal ... is frivolous or malicious; [or] fails to state a claim on which relief may be granted.'" Thompson, 492 F.3d at 436 (emphasis and alterations in original) (quoting 28 U.S.C. § 1915(e)(2)(B)(I), (e)(2)(B)(iii)). Therefore, a dismissal of an appeal on one of the enumerated grounds counts as a PLRA strike, while an affirmance of a district court's dismissal does not, even if the underlying dismissal itself counts as a strike.
Ball v. Famiglio, 726 F.3d 448 134 S.Ct. 1547

Finally, the dismissal of a case without prejudice may nonetheless qualify as a strike under § 1915(g), provided that the other requirements of the statute are met and the action is dismissed explicitly because it is " frivolous, " " malicious, " or " fails to state a claim." Childs v. Miller, 713 F.3d 1262, 1266 (10th Cir. 2013); Smith v. Veterans Admin., 636 F.3d 1306, 1313 (10th Cir. 2011); Day v. Maynard, 200 F.3d 665, 667 (10th Cir.1999) (per curiam). However, a dismissal for failure to prosecute, standing alone, may not qualify as a strike under § 1915(g), unless there is also a finding of frivolousness. Butler v. Dep't of Justice, 492 F.3d 440, 441, 377 U.S.App.D.C. 141 (D.C. Cir. 2007) holding modified by Mitchell v. Fed. Bureau of Prisons, 587 F.3d 415, 388 U.S.App.D.C. 346 (D.C. Cir. 2009)

Once it is determined that an inmate-plaintiff has had at least three prior lawsuits dismissed " on the grounds that [they were] frivolous, malicious, or fail[ed] to state a claim upon which relief may be granted, " 28 U.S.C. § 1915(g) compels denial of in forma pauperis status and dismissal of in forma pauperis lawsuits unless the inmate alleges that he or she " is under imminent danger of serious physical injury." 28 U.S.C. § 1915(g). With respect to this specific statutory exception, it is clear that:

The clause " unless he is in imminent danger of serious physical injury" is an exception to the preclusive effect of the statute. But the exception is cast in the present tense, not in the past tense, and the word " is" in the exception refers back to the same point in time as the first clause, i.e., the time of filing. The statute contemplates that the " imminent danger" will exist contemporaneously with the bringing of the action. Someone whose danger has passed cannot reasonably be described as someone who " is" in danger, nor can that past danger reasonably be described as " imminent."

Abdul-Akbar v. McKelvie, 239 F.3d at 313.

Moreover, in making this assessment of imminent danger:

A court need not accept all allegations of injury made pursuant to § 1915(g). To the contrary, a court may discredit " factual claims of imminent danger that are 'clearly baseless, ' i.e., allegations that are fantastic or delusional and rise to the level of the 'irrational or wholly incredible." ' Gibbs v. Cross, 160 F.3d 962, 967 (3d Cir.1998) (citing Denton v. Hernandez, 504 U.S. 25, 33, 112 S.Ct. 1728, 118 L.Ed.2d 340 (1992)). The Supreme Court has directed that, in assessing a case under 28 U.S.C. § 1915, we are not required to accept without question the truth of the plaintiff's allegations. See Denton, 504 U.S. at 32. Rather, we may be guided by judicially noticeable facts in determining whether the allegations are baseless or wholly incredible.

Brown v. City Of Philadelphia, 331 F.App'x at 900.

Further, " [i]n making this imminent danger assessment, '[a] court need not accept all allegations of injury made pursuant to § 1915(g). To the contrary, a court may discredit 'factual claims of imminent danger that are " clearly baseless, " i.e., allegations that are fantastic or delusional and rise to the level of the " irrational or wholly incredible.'" Gibbs v. Cross, 160 F.3d 962, 967 (3d Cir.1998) (citing Denton v. Hernandez, 504 U.S. 25, 33, 112 S.Ct. 1728, 118 L.Ed.2d 340 (1992))." Brown v. City Of Philadelphia, 331 F.App'x at 900. " Instead, '" [i]mminent" dangers are [only] those dangers which are about to occur at any moment or are impending.'" Meyers v. U.S. Dist. Court for the Middle Dist. of Pennsylvania, 1: 11-CV-0173, 2011 WL 766937 (M.D.Pa. Feb.25, 2011). Therefore, " [t]he 'imminent danger' exception to § 1915(g)'s 'three strikes' rule is available [solely] '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)." Banks v. Crockett, CIV. A. 1:07-CV-1019, 2007 WL 1655504 (M.D.Pa. June 7, 2007). Kelly v. Bush, 1:12-CV-1245, 2012 WL 4017995 (M.D.Pa. July 2, 2012) report and recommendation adopted, 1:12-CV-1245, 2012 WL 4017998 (M.D.Pa. Sept.12, 2012), appeal dismissed (Nov. 20, 2012). See McClain v. Mosier, 1: 13-CV-3011, 2014 WL 2864963 (M.D. Pa. June 24, 2014).

B. Application of § 1915(g)'s Three Strike Rule to This Lawsuit

Applying these legal benchmarks, we find that the defendants have shown that Ball had incurred three strikes at the time that she filed this lawsuit on October 4, 2011, although one of those strikes arguably had not become final by October 4, 2011. Ball's litigation history was thoroughly documented by the court of appeals in Ball v. Famiglio, 726 F.3d 448 (3d Cir. 2013) cert. denied, 134 S.Ct. 1547, 188 L.Ed.2d 565 (U.S. 2014). In that opinion the appellate court found that Ball had three strikes as of September 21, 2011. Those three strikes consisted of the dismissal of Ball v. SCI Muncy, No. 08-CV-0391 (M.D.Pa.); the dismissal of the appeal of Ball v. Hartman, 396 Fed.Appx. 823 (3d Cir. 2010); and, the dismissal of the appeal of Ball v. Butts, 445 Fed.Appx. 457 (3d Cir. 2011), a case which was dismissed on September 21, 2011, approximately two weeks prior to the filing of the instant case on October 4, 2011.

While the defendants accurately recount this aspect of Ball's fruitless litigation history, we note that they may err when they suggest that the September 21, 2011, dismissal in Ball v. Butts, 445 Fed.Appx. 457 (3d Cir. 2011), counted as a final strike as of the date of the filing of this complaint by Ball, October 4, 2011. Rather, in our view this dismissal may not have yet ripened into a strike since: " a . . . dismissal of a case does not count as a 'strike' under § 1915(g) until the litigant has exhausted or waived his opportunity to appeal. This means that a dismissal ripens into a 'strike' for § 1915(g) purposes on 'the date of the Supreme Court's denial or dismissal of a petition for writ of certiorari, if the prisoner filed one, or from the date when the time to file a petition for writ of certiorari expired, if he did not.' Hafed v. Fed. Bureau of Prisons, 635 F.3d 1172, 1176 (10th Cir.2011)." Silva v. Di Vittorio, 658 F.3d 1090, 1100 (9th Cir. 2011). The deadline for filing a petition for writ of certiorari with the United States Supreme Court is typically within 90 days of the appellate court's ruling. See 28 U.S.C. § 2101(c). Since 90 days had not elapsed between the ruling in Ball v. Butts, 445 Fed.Appx. 457 (3d Cir. 2011), and the filing of the instant complaint, it appears that this third strike was not yet ripe at the time Ball brought this lawsuit.

We also note that Ball's motion for leave to proceed in forma pauperis sought to avail herself of the " imminent danger" exception to § 1915(g)'s preclusive effect, by stating that " I'm being refused medical care." (Doc. 2.) As we have noted, in making this imminent danger assessment, " [a] court need not accept all allegations of injury made pursuant to § 1915(g). To the contrary, a court may discredit 'factual claims of imminent danger that are " clearly baseless, " i.e., allegations that are fantastic or delusional and rise to the level of the " irrational or wholly incredible." ' Gibbs v. Cross, 160 F.3d 962, 967 (3d Cir.1998)." Brown v. City Of Philadelphia, 331 F.App'x at 900. " Instead, '" [i]mminent" dangers are [only] those dangers which are about to occur at any moment or are impending.'" Meyers v. U.S. Dist. Court for the Middle Dist. of Pennsylvania, 1: 11-CV-0173, 2011 WL 766937 (M.D.Pa. Feb.25, 2011). Therefore, " [t]he 'imminent danger' exception to § 1915(g)'s 'three strikes' rule is available [solely] '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)." Banks v. Crockett, CIV.A. 1: 07-CV-1019, 2007 WL 1655504 (M.D.Pa. June 7, 2007). Furthermore, while Congress did not define " serious physical injury, " the courts have interpreted the meaning of the phrase to typically require some significant, and substantial risk to health or safety. See e.g., Ibrahim v. District of Columbia, 463 F.3d 3, 7, 373 U.S.App.D.C. 217 (D.C. Cir.2006), (a " chronic disease that could result in serious harm or even death constitutes 'serious physical injury.'); Brown v. Johnson, 387 F.3d 1344, 1350 (11th Cir.2004), (HIV and Hepatitis C, both chronic and potentially fatal diseases, met the " serious physical injury" requirement); Jennings v. Hall, 1: 10-CV-110, 2010 WL 748239 (W.D. Mich. Mar. 3, 2010).

Here, liberally construed, Ball's motion for leave to proceed in forma pauperis advances the same claim that lies at the heart of the sole remaining allegation in her complaint, allegations that she has been completely denied medical care for serious medical conditions over an extended period of time. While the defendants invite us to find that these allegations " 'rise to the level of the " irrational or wholly incredible" ' Gibbs v. Cross, 160 F.3d 962, 967 (3d Cir.1998)" Brown v. City Of Philadelphia, 331 F.App'x at 900, and Ball's past track record as a litigant casts doubt upon her credibility and the ultimate success of any such claim, we cannot say on this spare factual record that these claims, whose merits are entirely untested, are wholly incredible. We also note that the claims advanced by Ball in her motion for leave to proceed in forma pauperis seems inextricably intertwined with the underlying merits of the sole remaining claim in this lawsuit. On these facts, and given that one of the strikes incurred by Ball may not have fully ripened by October 2011, we recommend that this motion to revoke in forma pauperis status be denied.

In making this recommendation we appreciate the concerns which led the defendants to file this motion, concerns which have been heightened by recent filings made by Ball in other meritless cases brought by the plaintiff, filings in which Ball has conceded that her other lawsuits were motivated by a completely vexatious pique stating: " I accomplished 1 thing, I made the Dep't. of Corrections waste a hell of a lot of money defending my lawsuits and it makes me very happy knowing that. So I'm o.k. regardless of the outcome!" (Ball v. Sipe, 1:12-CV-537, Doc. 67, p. 3.) Ball has also made statements in other litigation which encapsulate the pointless rage, and senseless anger, that has marked the tragic trajectory of her life and litigation, stating: " I at least accomplished the D.O.C. to waste lots of money defending my suits which suits me just find. This judge, court and D.O.C. Defendants can go to hell! All of them!" (Ball v. Sipe, 1:12-CV-537, Doc. 67, p. 5.) Nonetheless, unlike Ball, we cannot be governed by unreasoning anger. Rather, we must follow the dictates of law, which call upon us to deny this motion, and address the merits of Ball's remaining claims in this lawsuit, while acknowledging that her past history of wholly frivolous litigation now foreclose the federal courts as a venue in which to vent her spleen in the future.[2]

III. Recommendation

Accordingly, for the foregoing reasons, IT IS RECOMMENDED that the defendants' motion to revoke the plaintiff's leave to proceed in forma pauperis (Doc. 111.) be DENIED.

The Parties are further placed on notice that pursuant to Local Rule 72.3:

Any party may object to a magistrate judge's proposed findings, recommendations or report addressing a motion or matter described in 28 U.S.C. § 636 (b)(1)(B) or making a recommendation for the disposition of a prisoner case or a habeas corpus petition within fourteen (14) days after being served with a copy thereof. Such party shall file with the clerk of court, and serve on the magistrate judge and all parties, written objections which shall specifically identify the portions of the proposed findings, recommendations or report to which objection is made and the basis for such objections. The briefing requirements set forth in Local Rule 72.2 shall apply. A judge shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made and may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The judge, however, need conduct a new hearing only in his or her discretion or where required by law, and may consider the record developed before the magistrate judge, making his or her own determination on the basis of that record. The judge may also receive further evidence, recall witnesses or recommit the matter to the magistrate judge with instructions.


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