United States District Court, M.D. Pennsylvania
JOSEPH A. BROWN, Plaintiff
SARAG DEES, Defendant
H. RAMBO United States District Judge
January 4, 2017, Plaintiff Joseph A. Brown, an inmate (number
09401-007) incarcerated at the United States Penitentiary at
Lewisburg, Pennsylvania (“USP-Lewisburg”), filed
a complaint pursuant to 28 U.S.C. § 1331 setting forth
claims under Bivens v. Six Unknown Named Agents of the
Federal Bureau of Narcotics, 403 U.S. 388 (1977) against
Sarah Dees, a physician assistant employed at USP-Lewisburg.
(Doc. 1.) Brown alleges that Dees failed to provide him with
adequate medical care on January 2 and 3, 2015, for burns he
sustained when he spilled scalding, hot water on his
groin. On January 13, 2017, Brown filed a motion
to proceed in forma pauperis (Doc. 6) and on January
20, 2017, an authorization to have funds deducted from his
prison account to pay the filing fee in installments. (Doc.
10.) In the motion to proceed in forma pauperis
Brown admitted that he had previously brought 3 or more
actions or appeals in a court of the United States that were
dismissed as frivolous, malicious or for failure to state a
claim upon which relief may be granted. However, Brown claims
that he is in imminent danger of serious physical injury.
(Doc. 6, at 2.) In support of that claim Brown merely states
as follows: “Staff has deliberately refused the
plaintiff medical-treatment for serious medical needs for
traumatic incidents that the plaintiff has suffered on
multiple occasions and because the plaintiff has a history of
suffering traumatic incidents caused by chronic P.T.S.D. the
medical staff will do it again and seeks injunctive relief to
stop the on-going misconduct.” (Id.)
made the exact same claim, i.e., being burned with scalding
water, in the case of Brown v. Sarah Dees, et al.,
1:16-CV-1585 (M.D. Pa. filed July 28, 2016). That case was
dismissed on December 8, 2016, under the three-strikes
provision, 28 U.S.C. § 1915(g), of the Prison Litigation
Reform Act, Pub. L. No. 104-134, 110 Stat. 1321 (April 26,
1996)(“PLRA”). Brown v. Dees, 2016 WL 719235,
at *3 (M.D.Pa. Dec. 8, 2016).
admits that he has three strikes under 28 U.S.C. §
1915(g). Furthermore, an electronic search on PACER confirms
that prior to filing the above-captioned case Brown did file
3 or more cases that were dismissed under 28 U.S.C. §
1915(e)(2) of the PLRA. Those strikes are enumerated in the
memorandum issued by this court on December 8, 2016, in the
prior case which was dismissed under the three strikes
provision. Brown v. Dees, 2016 WL 719235, at *3
(M.D.Pa. Dec. 8, 2016). The court incorporates herein by
reference the facts, including the enumeration of Brown's
prior cases which were dismissed under 28 U.S.C. §
1915(e)(2)(B)(ii), and the reasoning set forth in the
memorandum of December 8, 2016. (Id.)
February 21, 2017, Brown filed a motion for an extension of
time of 60 days to pay the filing fee. (Doc. 11.) For the
reasons set forth below the court will deny the motion for
extension of time and dismiss this case under the three
PLRA in an effort to halt the filing of meritless 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), and 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. Furthermore,
the Court of Appeals for the Third Circuit explained 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.
stated above Brown claims that he is in
“imminent” danger of serious physical injury.
After reviewing Brown's complaint and the assertions
regarding “imminent” danger set forth in his
motion to proceed in forma pauperis, the court
concludes that Brown's allegations are speculative and do
not satisfy the threshold criterion of the imminent danger
exception of 28 U.S.C. § 1915(g). Clearly, at the time
he filed the complaint he was not in imminent danger of
serious physical injury as contemplated by the statute.
is required to pay the full filing fee at the same time he
files the complaint. Dupree v. Palmer, 284 F.3d
1234, 1236 (11th Cir. 2002); Brooks-Bey v.
Schmerfelt, 2011 WL 1398472 (M.D.Pa. Mar. 21, 2011).
Consequently, the motion for extension of time will be denied
and the complaint dismissed under the three strikes
appropriate order ...