United States District Court, M.D. Pennsylvania
MALACHY E. MANNION UNITED STATES DISTRICT JUDGE
before the court is a motion to remove Plaintiff's in
forma pauperis status, filed by the United States of
America. (Doc. 48). For the reasons set forth below,
Defendant's motion will be granted.
April 11, 2019, Plaintiff, Michael Lee Gordon, an inmate
confined in the United States Penitentiary, Lewisburg
(USP-Lewisburg), Pennsylvania, filed the above captioned
Bivens action pursuant 28 U.S.C. §1331.
(Doc. 1). Without providing specific facts of the imminent
danger on the date of filing his complaint, Plaintiff states
Note: My life, safety and personal well-being is in imminent
threat of danger of a serious physical harm, injury and/or
death here at USP-Lewisburg at the filing of this complaint!
Id. Plaintiff then proceeds to allege that he
“does sue each defendant in their individual and
official capacities for violations of his constitutional
rights to be free from cruel and unusual punishments, to due
process and for various acts of retaliation and
discrimination, for forfeiture of ninety-one (91) books of
United States postage stamps, and other rights retained by
Plaintiff; thereby placing Plaintiff's life, safety and
personal well-being in an imminent threat and imminent danger
of a serious physical harm, injury and/or death for the soul
(sic) purpose to retaliate, discriminate, to deny Plaintiff
Due Process and/or to subject Plaintiff to cruel and unusual
punishment; because Plaintiff is transgender and Plaintiff
did utilize his constitutional Due Process rights to file
grievances and to petition for redress of those grievances
and to petition this Honorable Court for redress.”
April 29, 2019, Plaintiff filed an amended complaint. (Doc.
8). Plaintiff alleges that on April 9, 2019, he was sexually
assaulted by inmate Gerald Spillman. Id. After the
issuance of several administrative orders by this Court,
(Docs. 22, 23), on June 14, 2019, Plaintiff filed a motion
for leave to proceed in forma pauperis, along with a
copy of his prisoner trust fund statement. (Docs. 29, 30). By
Order dated July 31, 2019, Plaintiff was permitted to proceed
in forma pauperis, and the amended complaint was
served on the Defendants named therein. (Doc. 38).
September 24, 2019, the United States filed a motion to
remove Plaintiff's in forma pauperis status
pursuant to the “three strikes” provision of the
Prison Litigation Reform Act, (PLRA), 28 U.S.C.
§1915(g), because he has at least three civil actions
that were dismissed as frivolous, malicious or for failure to
state a claim; and because Gordon was not in “imminent
danger” of physical harm at the time he filed the
complaint or sought to proceed in forma pauperis.
(Doc. 48). Specifically, Defendant submits that Gordon is a
prolific prison litigator who is listed as a party in 160
matters on PACER, including 62 appeals and 83 civil actions
in district court. (See Doc. 49-1 at 25, PACER Case
Locator Result List). Additionally, the United States notes
that in Gordon v. Hawk-Sawyer, the Eastern District
of Texas dismissed Gordon's lawsuit, finding his lawsuit
asserting access to courts claims was frivolous and failed to
state a claim upon which relief may be granted pursuant to 28
U.S.C. §1915(d). See Gordon v. Hawk-Sawyer, No.
1:03cv177, slip op. (E.D. Tx. Mar. 15, 2004); Rep. and
Recommendation adopted by slip op. (E.D. Tx. Sept. 15, 2004);
aff'd sub nom Gordon v. Day, 172 Fed. App'x
565 (5th Cir. 2006). (See Doc. 49-1 at 46-69).
Gordon v. Lappin, this Court granted the
defendants' motion to dismiss or, in the alternative, for
summary judgment, finding Gordon failed to state an access to
courts claim and failed to carry his burden in establishing a
First Amendment retaliation claim. See Gordon v.
Lappin, No. 3:05-cv-00457, slip op. (M.D. Pa. July 28,
2006); Rep. and Recommendation adopted by slip op. (M.D. Pa.
Sept. 7, 2006). (See Doc. 49-1 at 71 - 80). The
Third Circuit dismissed Gordon's appeal pursuant to 28
U.S.C. §1915(e)(2)(B) on August 15, 2007, finding that
the Gordon's appeal failed to state a claim for which
relief can be granted. See Gordon v. Lappin, No.
06-4154, slip op. (3d Cir. Aug. 15, 2017).
in Gordon v. Durkin, the Southern District of Ohio
dismissed Gordon's legal malpractice suit against his
criminal defense attorney for failing to state a claim based
on the favorable termination rule. See Gordon v.
Durkin, No. 2:09-cv-00919, slip op. (S.D. Oh. Dec. 4,
to 28 U.S.C. §1915(g), a prisoner, who on three or more
prior occasions while incarcerated has filed an action or
appeal in federal court that was dismissed as frivolous,
malicious, or for failure to state a claim upon which relief
may be granted, must be denied in forma pauperis
status unless he was in imminent danger of serious physical
injury at the time that the complaint was filed.
Abdul-Akbar, 239 F.3d at 310-11. Gordon has had
three prior actions or appeals dismissed as frivolous,
malicious, or for failing to state a viable claim. He does
not dispute any of his strikes. Accordingly, he may not
proceed in forma pauperis unless he was in imminent
danger of serious physical injury at the time he filed the
of imminent danger must be evaluated in accordance with the
liberal pleading standard applicable to pro se
litigants, although the Court need not credit
“fantastic or delusional” allegations that
“rise to the level of irrational or wholly
incredible.” Gibbs v, Cross, 160 F.3d 962,
966-67 (3d Cir. 1998) (quotations omitted). A prisoner need
not allege an “existing serious physical injury”
to qualify for the exception to the “three
strikes” provision. Id. at 967. “It is
sufficient that the condition [alleged] poses an imminent
danger of serious physical injury.” Id.;
see also Abdul-Akbar, 239 F.3d at 315. Imminent
danger must exist “contemporaneously with the bringing
of the action. Someone whose danger has passed cannot
reasonably be described as someone who ‘is' in
danger, nor can that past danger reasonably be described as
‘imminent.'” Abdul-Akbar, 239 F.3d
Ball v. Hummel, the Court found that the four months
that elapsed between the plaintiffs alleged harm and the
filing of the civil rights complaint did not amount to
imminent harm which would justify avoidance of the sanctions
prescribed by 28 U.S.C. §1915(g). Ball v.
Hummel, 2012 WL 3618702 (M.D. Pa. 2012), adopted
by, 2012 WL 3624045 (M.D. Pa. 2012), affirmed,
577 Fed.Appx. 96 (3d Cir. 2014). The Court in Ball
further stated that the inmate could not save her
“otherwise inadequate pleadings by alleging in vague
and conclusory terms that she feels constantly under threat
of some sort of harm. Quite the contrary, it is well-settled
that: ‘this type of general assertion: is insufficient
to invoke the exception to §1915(g) absent specific fact