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. 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2011)(nonprecedential); Chavis v. Chappius, 618 F.3d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) (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 on his unspecified date of arrival at USP
Lewisburg, Dr. Edinger abruptly ceased “all his
medications for seizures, mental health and pain for his back
disease because McCarthy filed complaints against him and
staff.” (ECF No. 1, Compl., ¶ 2). For the next
three years Dr. Edinger, Dr. Pigos and other staff members
refused to provide him with “any care for his serious
needs.” (Id., ¶ 3). He claims staff
falsified his medical record to make it appear they were
providing him care when they were not. He claims defendants
retaliated against him for filing complaints and lawsuits
against them. 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 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:
prison staff are indifferent to my serious medical needs and