United States District Court, M.D. Pennsylvania
D. MARIANI UNITED STATES DISTRICT JUDGE.
Eunice Husband ("Husband"), a federal inmate
incarcerated at the United States Penitentiary at Lewisburg
("USP-Lewisburg"), Pennsylvania, initiated this
Bivens[]action on March 23,
2016, seeking to proceed in forma pauperis. (Doc.
1). Husband is a prolific filer who is subject to the three
strikes provision set forth in 28 U.S.C. § 1915(g). The
Court initially granted Husband's application to proceed
in forma pauperis status. (Doc. 9). Defendants
thereafter filed a motion to remove Husband's in
forma pauperis status, and stay the proceedings pending
receipt of the full filing fee. (Doc. 16). By Memorandum and
Order dated December 12, 2016, the Court determined that
Husband failed to sufficiently allege that he was in imminent
danger of serious bodily harm, and granted Defendants'
motion to revoke Husband's in forma pauperis
status. (Docs. 21, 22). The Court vacated the prior Order
granting Husband's motion to proceed without full
prepayment of fees and costs, stayed this action pending
receipt of the full filing fee, and granted Husband thirty
(30) days to pay the full filing fee if he wished to pursue
the claims in the instant action. (Id.)
before the Court is Husband's motion for reconsideration
(Doc. 23) of this Court's December 12, 2016 Order. For
the reasons set forth below, the motion for reconsideration
will be denied.
Motion for Reconsideration Standard of Review
motion for reconsideration is a device of limited utility. It
may be used only to seek remediation for manifest errors of
law or fact or to present newly discovered evidence which, if
discovered previously, might have affected the court's
decision. Harsco Corp. v. Zloinicki, 779 F.2d 906
(3d Cir. 1985), cert, denied, 476 U.S. 1171 (1986).
Accordingly, a party seeking reconsideration must demonstrate
at least one of the following grounds prior to the court
altering, or amending, a standing judgment: (1) an
intervening change in the controlling law; (2) the
availability of new evidence that was not available when the
court granted the motion; or (3) the need to correct a clear
error of law or fact or to prevent manifest injustice.
Max's Seafood Cafe v. Quineros, 176 F.3d 669,
677 (3d Cir. 1999), citing North River Ins. Co. v. CIGNA
Reinsurance Co., 52 F.3d 1194, 1218 (3d Cir. 1995).
motion for reconsideration is appropriate in instances where
the court has "...misunderstood a party, or has made a
decision outside the adversarial issues presented to the
Court by the parties, or has made an error not of reasoning
but of apprehension." Rohrbach v. AT&T Nassau
Metals Corp., 902 F.Supp. 523, 527 (M.D. Pa. 1995),
vacated in part on other grounds on reconsideration
915 F.Supp. 712 (M.D. Pa. 1996), quoting Above the Belt,
Inc. v. Mel Bohannan Roofing, Inc., 99 F.R.D. 99, 101
(E.D. Va. 1983). It may not be used as a means to reargue
unsuccessful theories, or argue new facts or issues that were
not presented to the court in the context of the matter
previously decided. Drysdale v. Woerth, 153
F.Supp.2d 678, 682 (E.D. Pa. 2001). "Because federal
courts have a strong interest in the finality of judgments,
motions for reconsideration should be granted
sparingly." Continental Casualty Co. v. Diversified
Indus. Inc., 884 F.Supp. 937, 943 (E.D. Pa. 1995).
Husband requests that the Court reverse its Order removing
his in forma pauperis status. (Doc. 23). Upon review
of the instant motion, Husband fails to establish any grounds
warranting reconsideration of the December 12, 2016
Memorandum and Order. Rather, Husband simply restates the
allegations of the complaint, and again requests that the
Court allow him to proceed in forma pauperis based
on the same reasons set forth in the complaint.
motion for reconsideration, Husband claims that, at the time
he filed his complaint, he was in imminent danger of serious
physical injury because he was "sexually assaulted,
sexually harassed, physically assaulted, and/or sexually
verbally harassed" by Defendant Aleman-Acevedo in
January, February, and March 2016. (Id. at pp. 1-2).
Husband claims that Defendants' explanation that staff
may probe inmates' genitalia during pat-down searches
must "fail." (Id. at p. 2). Additionally,
Husband asserts "a pattern of staff misconduct" due
to his placement in cells and recreation areas with inmates
from adverse "geographical groups, " and states
that he engaged in fights in August 2013, and June and July
2016. (Id. at p. 3). Husband claims that his
"sufferings have manifested over [the] years."
complaint, Husband alleged that, in January, February and
March, 2016, Defendant Aleman-Acevedo groped his genitals and
buttocks during pat-down searches, yanked his hand
restraints, stared at his genitals, and made a sexual remark
while he was in the shower. (Doc. 1, pp. 3-7). Husband
alleged that he informed the Defendants about the incidents,
and certain unnamed Defendants witnessed the incidents, but
failed to report them. (Id.). Husband noted that
Defendants advised him that staff may probe inmates'
genitalia during pat-down searches. (Id.). In a
supplement to the complaint, Husband alleged that he engaged
in a fight with another inmate in August 2013, and that staff
"continues to place plaintiff in harms-way by placing
plaintiff in Recreation-cages with other Washington, D.C.
inmates." (Doc. 14, p. 1). This Court previously
determined that the alleged physical and sexual assaults that
occurred in the months and years prior to the filing of the
complaint were insufficient to invoke the imminent danger
exception to the three strikes rule. (Doc. 21, pp. 4-5);
see also Ball v. Hummel, 2012 WL 3618702, at *11
(M.D. Pa. 2012), adopted by, 2012 WL 3624045 (M.D.
Pa. 2012), affirmed, 577 F.App'x 96 (3d Cir.
2014) (finding that the inmate could not save her
"otherwise inadequate pleadings by alleging in vague and
conclusory terms that she feels constantly under threat of
some sort of harm. Quite the contrary, it is well-settled
that: 'this type of general assertion: is insufficient to
invoke the exception to § 1915(g) absent specific fact
allegations of ongoing serious physical injury, or of a
pattern of misconduct evidencing the likelihood of imminent
serious physical injury'") (citations omitted);
Brown v. Lyons, 2013 WL 5629774, at *4 (E.D. Pa.
2013) ("even if an alleged harm may in fact be
'impending, ' it does not satisfy this exception if
it does not threaten to cause 'serious physical
injury'") (citing 28 U.S.C. § 1915(g)). This
Court further determined that Husband did not allege any form
of serious physical injury, and his allegation of verbal
harassment could not reasonably be construed as an imminent
threat of serious physical injury. (Doc. 21, pp. 4-5).
has not demonstrated a need to reconsider the December 12,
2016 Memorandum and Order. He fails to advance an intervening
change in controlling law, to present newly found evidence,
or to establish that a clear error of law or fact exists. Nor
does he establish that the Court came to its conclusions by
way of some gross misunderstanding of the facts or law of
this case. Consequently, the motion for reconsideration will