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 March 3, 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. 7).
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2011)(nonprecedential); Chavis v. Chappius, 618 F.3d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) (prisoner 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
insufficient 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)(nonprecedential) (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
Allegations of the Complaint and Imminent Harm
alleges that because staff refused to provide him with
“protection, ” he was assaulted more than ten
times over a three-year period. He states that prison
officials deliberately placed him in cells with violent
prisoners “to get to hurt him.” (ECF No. 1,
Compl., ¶ 2.) Plaintiff claims his requests for
protection were denied. At one point, SIA Health had
authorized his placement in protective custody but then later
lied, saying “he never signed one.”
(Id.) McCarthy seeks monetary compensation for
physical and mental injuries.
application to proceed in forma pauperis (ECF No.
7), 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 friv olous,
malicious or for failure to state a claim upon which relief
may be granted.
(Id., p. 1). He seeks to proceed in forma
pauperis by 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 time he filed the Complaint based on the following:
I am and was denied medical care - mental healt h care -
denied protection and beaten up assaulted by ...