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Davis v. Wetzel

United States District Court, M.D. Pennsylvania

June 13, 2018

KEVIN DAVIS, Plaintiff,
JOHN WETZEL, et al, Defendants.



         Presently before this Court are two motions-a pleading filed by Plaintiff on March 23, 2013, construed by this Court as a Motion for Leave to Supplement the Complaint[1] (Doc. 42), and a motion to revoke Plaintiffs in forma pauperis status, filed by the Pennsylvania Department of Corrections ("DOC") Defendants on April 25, 2018. (Doc. 66). For the reasons stated herein, the Court will DENY both motions. (Doc. 42; Doc. 66).

         I. Background

         Plaintiff, Kevin Davis (hereinafter referred to as "Davis"), is a federal prisoner currently incarcerated within the DOC. (Doc. 5; Doc. 40). On October 30, 2017, Davis filed a pro se complaint in the United States District Court for the Western District of Pennsylvania. (Doc. 5). Davis also filed a motion to proceed in forma pauperis ("IFP") on October 27, 2017, which was granted by the Western District Court on October 30, 2017. (Doc. 2; Doc 4). At the time he filed the complaint, Davis was incarcerated at the State Correction Institution in Fayette, Pennsylvania ("SCI-Fayette"). (Doc. 5).

         In the complaint, [2] Davis alleges that various Defendants violated his Eight Amendment Right to adequate medical care for his Hepatitis C. (Doc. 5, at 3). Specifically, Davis brings his cause of action against the following Defendants: John E. Wetzel, Secretary of the DOC; Paul Noel, along with three other members of the Hepatitis C Treatment Committee that are identified as "John Does"; Joseph Silva, the Director of Bureau of Health Care Services at the DOC; Nedra Grego, the Corrections Healthcare Administrator at SCI-Fayette; N. Ranker, an infectious control nurse at SCI-Fayette; "John Doe, Chief Counsel"; and Correct Care Solutions, the company that contracts with the DOC to provide medical services.[3] Davis avers that the Hepatitis C Treatment Committee, which renders decisions as to whether an inmate qualifies for certain healthcare under the DOC's Hepatitis C policy, denied his request to be treated with an effective direct-acting antiviral ("DAA") medication called Harvoni. (Doc. 5, at 3-4). Davis purportedly requested Harvoni when his past course of Hepatitis C treatment[4] "did not work, " and he subsequently "developed skin problems and lo[st] consciousness repeatedly. " (Doc. 5, at 3-4). Davis's complaint further alleges that the DOC's "policies, customs and practices prevent [him] from obtaining treatment for a[n] illness that he obtained while in the care, custody and control of the [DOC]." (Doc. 5, at 4).

         In addition to his complaint, Davis filed a motion for preliminary injunction on December 1, 2017, which sought immediate Hepatitis C treatment with certain DAA medications. (Doc. 9). The preliminary injunction further demanded that the Defendants hire a dermatologist to treat Davis's "skin problem that developed due to the untreated Hepatitis C." (Doc. 9, at 2). With his Motion for Preliminary Injunction was still pending, Davis was transferred from SCI-Fayette to the State Correction Institution in Graterford, Pennsylvania ("SCI-Graterford"), where he currently is incarcerated. (Doc. 40). Thereafter, Davis filed a motion to include two acts of retaliation in his "First Amended Complaint. "[5] (Doc. 42, at 1-2). However, upon the Defendants' motion, the Western District Court transferred Davis's cause of action to the Middle District of Pennsylvania on April 9, 2018.[6] (Doc. 46; Doc. 47). While his Motion to Include a Retaliation Claim (Doc. 42) remained pending before this Court, Davis filed an Amended Complaint on May 4, 2018. (Doc. 69).

         On April 26, 2018, the DOC Defendants, through counsel, moved to revoke Davis's IFP status. (Doc. 66). Specifically, the DOC Defendants argue that Davis had accrued "three strikes" under 28 U.S.C. § 1915(g) of the Prisoner Litigation Reform Act ("PLRA"), and that he failed to allege he was under imminent danger at the time of filing the complaint. (Doc. 66, at 4). In support of this contention, the DOC Defendants rely on an Order issued in the case Davis v. Lineberger, et al, CA. No. 06-3557 (3d Cir. Aug. 9, 2007) on June 18, 2007 (the "June 18th Order"), wherein the Third Circuit Court of Appeals denied a previous request for Davis to proceed in forma pauperis. (Doc. 68, at 4). The June 18th Order identified three other federal civil actions filed by Davis that were previously dismissed pursuant to 28 U.S.C. § 1915(e). (Doc. 68, at 4). As a result, the DOC Defendants argue that Davis is barred from proceeding in forma pauperis in this case, and should have his IFP status revoked under 28 U.S.C. § 1915(g). (Doc. 66). On May 11, 2018, the Court received Davis's response to the motion. (Doc. 71). Therein, David did not appear to dispute the calculation of the three "strikes" against him, but rather claimed his IFP status should not be revoked pursuant to a narrow exception to the "three strikes rule" that applies when a prisoner is "under imminent danger of serious physical injury." (Doc. 71). Davis further argued that the DOC Defendants did not timely appeal his motion for IFP status, and that the original Judge in the Western District Court granted Davis's IFP application in light of the imminent danger exception. (Doc. 71, at 4-6). The DOC Defendants declined to file a reply brief in response to Davis's arguments.

         II. Discussion

         Davis is not barred from proceeding in forma pauperis pursuant to the "three strikes rule" set forth in 28 U.S.C. § 1915(g). Specifically, when liberally construed, he has demonstrated that he was under imminent danger of serious physical injury at the time the complaint was filed.

         A. The Plaintiff's Prior "Strikes"

         The statutory text of the "three strikes rule" provides that:

In no event shall a prisoner bring a civil action or appeal a judgment in a civil action or proceeding under this section if the prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of the United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious physical injury.

28 U.S.C. § 1915(g). The Third Circuit has discussed the appropriate standard for evaluating the accrual of "strikes" under 28 U.S.C. § 1915(g) as follows:

[A] strike under § 1915(g) will accrue only if the entire action or appeal is (1) dismissed explicitly because it is "frivolous, " "malicious, " or "fails to state a claim" or (2) dismissed pursuant to a statutory provision or rule that is limited solely to dismissal for such reasons, including (but not necessarily limited to) 28 U.S.C. §§ 1915A(b)(1), 1915(e)(2)(B)(i), 1915(e)(2)(B)(ii), or Rule 12(b)(6) of the Federal Rules of Civil Procedure.

Byrd v. Shannon, 715 F.3d 117, 126 (3d Cir. 2013).

         The Supreme Court of the United States has further clarified that "[a] prior dismissal on a statutorily enumerated ground counts as a strike even if the dismissal is the subject of an appeal." Coleman v. Tollefson, 135 S.Ct. 1759, 1763 (2015). Indeed, "[§ 1915(g)] does not treat a qualifying dismissal as provisional pending appeal, but rather speaks only to whether an action or appeal 'was dismissed'-a term that 'does not normally include subsequent appellate activity' and which 'describes... an action taken by a single court, not... a sequence of events involving multiple courts.'" Parker v. Montgomery Cty. Corr. Facility / Bus. Office Manager, 870 F.3d 144, 150 (3d Cir. 2017) (quoting Coleman, 135 S.Ct. at 1763).

         The DOC Defendants argue that Davis accrued three strikes prior to filing the complaint in this action. (Doc. 67, at: 4). Indeed, the DOC Defendants identified the June 18th Order, wherein the Third Circuit Court of Appeals found that Davis previously accrued the following three strikes:

1. Davis v. Price, No. 2:98-CV-01900 (W.D. Pa. Dec. 16, 1999) (dismissing case pursuant to the Prison Litigation Reform Act);
2. Davis v.Price, No. 2:98-CV-01900 (W.D. Pa. Dec. 16, 1999); No. 00-3012 (3d Cir. Mar. 13, 2001) (dismissing ...

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