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McCarthy v. Ebbert

United States District Court, M.D. Pennsylvania

May 23, 2017

JOHN J. McCARTHY, Plaintiff
v.
WARDEN EBBERT, et al., Defendants

          MEMORANDUM

          William W. Caldwell United States District Judge.

         I. Introduction

         The pro 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).

         For the 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 $400.[1]

         II. Standard of Review

         “In 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).

         “[A] 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 Prall v. Bocchini, 421 F. App'x 143, 145 (3d Cir. 2011)(nonprecedential); Chavis v. Chappius, 618 F.3d 162, 170-71 (2d Cir. 2010) (prison can establish imminent danger of physical harm by recounting recent injuries that reveal an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).

         When 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).[2]

         III. Allegations of the Complaint and Imminent Harm

         McCarthy 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).

         McCarthy 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. (Id.)

         In his 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 ...


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