United States District Court, W.D. Pennsylvania
LISA PUPO LENIHAN, Magistrate Judge.
Plaintiff Bobby Brightwell initiated this action on March 10, 2015 by submitting for filing a "Supplemental Emergency Relief" Motion seeking relief under the Americans with Disabilities Act, which this Court construed as a Petition for Writ of Mandamus. (ECF No. 1.) Based on the seriousness of the allegations contained within Plaintiff's Motion, specifically that he was being denied his insulin medication, the Court directed the Attorney General's (AG's) Office to file an immediate response to the Motion, and said response was filed shortly thereafter. (ECF No. 3.)
The response indicates that Plaintiff has never been denied his insulin, but instead refused to go to medical for his mediations, including insulin, after he was caught hoarding self-administered medication and was put on direct observation for all medications. Thus, they submit that Plaintiff made the decision to stop taking his insulin.
Plaintiff filed a response in opposition to the AG's response (ECF No. 8) claiming that he is falsely imprisoned and that his medication and insulin were taken from him because he refuses to sign a Commitment Order. He also denies all other averments in the AG's response.
Although Plaintiff has not yet submitted a motion for leave to proceed in forma pauperis or paid the filing fee to proceed in this action, the Court takes judicial notice that Plaintiff may not proceed in forma pauperis because he has already accumulated three strikes within the contemplation of 28 U.S.C. § 1915(g),  which provides in relevant 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 was 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) (as amended).
In sum, under the three strikes rule, a prisoner who, on three or more prior occasions while incarcerated, has filed an action in a federal court that was dismissed as frivolous, malicious, or for failure to state a claim upon which relief may be granted, must be denied IFP status unless he is in imminent danger of serious physical injury. 28 U.S.C. § 1915(g).
Plaintiff is a "prisoner" within the meaning of 28 U.S.C. § 1915(g), and the Third Circuit Court of Appeals has specifically held that Plaintiff is barred from obtaining in forma pauperis status under § 1915(g). See Brightwell v. Lehman, C.A. No. 07-3917 (3d Cir. Order filed Feb. 9, 2011) (referencing the district court's October 30, 2003 Report and Recommendation to which Magistrate Judge Sensenich explained that Brightwell, a "litigious prisoner", was ineligible for in forma pauperis status because of his history of filing frivolous suits; specifically he had filed seventeen actions in Pennsylvania district courts.)
To satisfy the imminent danger exception to the rule, a plaintiff must allege facts showing that they were in imminent danger at the time the complaint was filed; allegations that the prisoner has faced imminent danger in the past are insufficient to trigger the exception to section 1915(g). See Abdul-Akbar v. McKelvie, 239 F.3d 307 (3d Cir. 2001) (overruling Gibbs v. Roman, 116 F.3d 83, 86 (3d Cir. 1997)). In making this determination, the court should construe all allegations in a complaint in favor of the plaintiff. Gibbs v. Cross, 160 F.3d 962, 965 (3d Cir. 1998); Gibbs v. Roman, 116 F.3d at 86. The Third Circuit Court of Appeals has instructed that:
"[i]mminent dangers are those dangers which are about to occur at any moment or are impending. By using the term "imminent, " Congress indicated that it wanted to include a safety valve for the "three strikes" rule to prevent impending harms, not those harms that had already occurred. The imminent danger exception allows the district court to permit an otherwise barred prisoner to file a complaint I.F.P. if the prisoner could be subject to serious physical injury and does not then have the requisite filing fee.
Abdul-Akbar, 239 F.3d at 315 (internal citations omitted).
In addition, in upholding the constitutionality of section 1915(g), Judge Easterbrook, writing for the Court of Appeals for the Seventh Circuit, found as follows.
... A prisoner who suffers a threat to (or deprivation of) fundamental rights has ready access to the courts. ...