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Talley v. Sandusky

United States District Court, W.D. Pennsylvania

December 5, 2019


          Nora Barry Fischer, United States District Judge.


          Cynthia Reed Eddy, Chief United States Magistrate Judge.

         I. Recommendation

         It is respectfully recommended that Plaintiff's Motion for Leave to Proceed In Forma Pauperis (ECF No. 4) be denied in accordance with 28 U.S.C. § 1915(g) and that this action be dismissed without prejudice to Plaintiff reopening it by paying the full statutory and administrative filing fees, totaling $400.00.

         II. Report

         A. Background

         Plaintiff, Quintez Talley, is a very litigious Pennsylvania state prisoner, currently housed at SCI-Fayette. He has filed lawsuits in all three federal district courts in Pennsylvania, as well as in Greene County and Centre Counties. At last count, he had filed over 50 lawsuits.

         On October 25, 2019, the Court received Talley's complaint in this matter, dated October 18, 2019. (ECF No. 1). It was not accompanied by the filing fee or a motion for leave to proceed in forma pauperis; accordingly, Talley was advised that the case was administratively closed until such time as he either paid the filing fee in full or submitted a properly completed application to proceed in forma pauperis. (ECF No. 3). On November 12, 2019, the Court received the pending motion for leave to proceed in forma pauperis (ECF No. 4) and the case thereafter was reopened.

         The allegations which give rise to this lawsuit occurred in October and December of 2017, while Talley was housed at SCI-Somerset.

         B. Relevant Law

         The Prisoner Litigation Reform Act, Pub. L. No. 104-134, 110 Stat. 1321-66 (1996) (the “PLRA”) provides that “[p]laintiffs who are prisoners [] may be barred from proceeding IFP by operation of the so-called ‘three-strikes rule'.” Brown v. Sage, 941 F.3d 655, 657 (3d Cir. 2019). A prisoner cannot proceed IFP if at the time the complaint was filed “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 failed to state a claim upon which relief may be granted unless the prisoner is in imminent danger of serious physical injury.” Id. Prisoners with three strikes who cannot satisfy the imminent danger exception are not barred from filing additional federal actions, rather they are denied the privilege of proceeding IFP and must pay the requisite filing fee in full prior to commencing a new action. Abdul-Akbar v. McKelvie, 239 F.3d 307, 314 (3d Cir.) (en banc), cert denied, 533 U.S. 953 (2001). Thus, when denying or revoking a prisoner's IFP status because of his or her accrual of three strikes, the court must determine what strikes the prisoner accrued prior to initiating the action immediately before the court. Gibbs v. Ryan, 160 F.3d 160, 162 (3d Cir. 1998). If determined to have three qualifying strikes to their name, then the court must consider whether the prisoner qualifies for the “imminent danger” exception.

         In making this determination, a court must examine the situation faced by the prisoner at the time of the filing of the complaint, and a showing of danger in the past is insufficient to demonstrate imminent danger. Abdul-Akbar v. McKelvie, 239 F.3d at 312. Allegations 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). The Court of Appeals for the Third Circuit has instructed that:

“[i]mminent” dangers are those dangers which are about to occur at any moment or are impending. By using the term “imminent, ” Congress indicated that it wanted to include a safety valve for the “three strikes” rule to prevent impending harms, not those harms that had already occurred. The imminent danger exception allows the district court to permit an otherwise barred prisoner to file a complaint I.F.P. if the prisoner could be subject to serious physical injury and does not then have the requisite filing fee.

Id. at 315 (internal citation omitted). The imminent danger exception is available only for genuine emergencies where time is pressing and a threat is real and proximate. Long v. Lanigan,et al., CA No. 10-0798, ...

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