United States District Court, M.D. Pennsylvania
JOHN J. McCARTHY, Plaintiff
WARDEN EBBERT, et al., Defendants
William W. Caldwell United States District Judge.
se plaintiff, John McCarthy, a former federal inmate,
initiated this action on February 23, 2017, while housed at
the United States Penitentiary in Lewisburg, Pennsylvania.
(ECF No. 1, Compl.). Presently before the court is
McCarthy's motion for leave to proceed in forma
pauperis (IFP). (ECF No. 5).
reason that follow, McCarthy's IFP motion will be denied.
The action will therefore be dismissed without prejudice
unless McCarthy pays the requisite filing fee of
Standard of Review
the Prison Litigation Reform Act of 1995 (PLRA), 110 Stat.
1321-66, Congress placed several limitations on prisoner
litigation in federal courts.” Bruce v
Samuels, ___ U.S. ___, ___, 136 S.Ct. 627, 630, 193
L.Ed.2d 496 (2016). One such limitation was the
“three-strikes provision: Prisoners whose suit or
appeals are dismissed three or more times as frivolous,
malicious, or failing to state a claim on which relief may be
granted are barred from proceeding IFP ‘unless the
prisoner is under imminent danger of serious physical
injury.' § 1915(g).” Id. at ___, 136
S.Ct. at 630; see also 28 U.S.C. § 1915(g).
prisoner may invoke the ‘imminent danger' exception
only to seek relief from a danger which is
‘imminent' at the time the complaint is
filed.” Abdul-Akbar v. McKelvie, 239 F.3d 307,
312 (3d Cir. 2001) (en banc). “By using the term
‘imminent, ' Congress indicated that it wanted to .
. . prevent impending harms, not those harms that had already
occurred.” Id. at 312-15. However, an inmate
can meet the imminent danger exception by alleging a
continuing danger of serious physical injury. Prall v.
Bocchini, 421 F. App'x 143, 145 (3d Cir.
2011)(nonprecedential); Chavis v. Chappius, 618 F.3d
162, 170-71 (2d Cir. 2010) (prison can establish imminent
danger of physical harm by recounting recent injuries that
reveal an “ongoing pattern of acts” as well as
threats of future harm); Andrews v. Cervantes, 493
F.3d 1047, 1056- 57 (9th Cir. 2007) (“a prisoner who
alleges that prison officials continue with a practice that
has injured him or other similarly situated in the past will
satisfy the ‘ongoing danger' standard”).
However, vague, general, or conclusory allegations are
insufficent to establish that a plaintiff is in imminent
danger. See Ball v. Famiglio, 726 F.3d 448, 468 (3d
Cir. 2013), abrogated on other grounds by,
Coleman v. Tollefson, ___ U.S. ___, ___, 135 S.Ct.
1759, 1763, 191 L.Ed.2d 803 (2015).
evaluating an allegation of imminent danger of serious
physical injury, the court must determine whether the inmate
has drawn “an adequate nexus between the claims [s]he
seeks to pursue and the ‘imminent danger' [s]he
alleges.” Ball v. Hummel, 577 F. App'x 96,
at n.1 (3d Cir. 2014) (citing Pettus v. Morgenthau,
554 F.3d 293, 296 (2d Cir. 2009)). “[T]here must be a
nexus between the imminent danger a three-strikes prisoner
alleges to obtain IFP status and the legal claims asserted in
the complaint.” Pettus, 554 F.3d at 297.
“In deciding whether such a nexus exists, [courts] will
consider (1) whether the imminent danger of serious physical
injury that a three-strikes litigant alleges is fairly
traceable to unlawful conduct asserted in the complaint and
(2) whether a favorable judicial outcome would redress that
injury.” Pettus, 554 F.3d at 298-99 (emphasis
and footnote omitted).
Allegations of the Complaint and Imminent Harm
alleges that for the past three years, he was housed in the
Special Management Unit (SMU) at USP Lewisburg. (ECF No. 1,
Compl.) While there “John Doe Staff refused to provide
[him] administrative remedy forms and often refused to
process them that addressed staff misconduct; harassment;
assault; denial of medical care; denial of protection; denial
of showers, recreation, safe housing; reckless excessive cell
searches; denial of dental care and due process at required
hearings; denial of halfway house; denial of access to courts
and law library.” (Id., p. 2).
avers that he personally advised Warden Ebbert, John Doe
Agents and Staff Attorney Cunningham “of the
forgoing” and all defendants ignored him.
(Id.) As a result, he claims he “suffered pain
and suffering and scars and disease.” (Id., p.
3). He seeks compensatory and punitive damages.
application to proceed in forma pauperis (ECF No.
5), McCarthy affirms that:
prior to the filing of the complaint in this action and while
a prisoner as that term is defined in 28 U.S.C. §
1915(h), [he] 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.
(Id., p. 1). He seeks to proceed in forma
pauperis asserting a claim of imminent danger of serious
physical injury. (Id., p. 2). He explains that he
was under imminent danger of serious physical injury at the