The opinion
FORI NT HTEH EE AUSNTIETREND DSTISATTREISC DT IOSTFR PIECNTN CSOYULVRAT NIA
CHARLES TALBERT : CIVIL ACTION
:
v. : NO. 20-3401
:
WELL PATH, et al. :
MEMORANDUM
KEARNEY, J. July 20, 2020
Incarcerated pro se litigant Charles Talbert challenges his latest prison’s level of medical
care without paying the filing fees despite us barring him in April 2019 from filing lawsuits without
paying the filing fees under Congress’s mandate in 28 U.S.C. § 1915. Mr. Talbert alleges an
undiagnosed heart infection is causing him leg and chest pains at SCI-Phoenix and he wants a
private consult at Abington Hospital. Mr. Talbert alleges the prison medical staff failed to
diagnose his heart infection. He pleads his leg and chest pains are symptoms of this undiagnosed
heart infection which is caused by his preexisting health problems. Dissatisfied by the professional
opinions of the SCI Phoenix medical staff, Mr. Talbert requests a mandatory preliminary
injunction so he may be evaluated by doctors at Abington Memorial Hospital.
Because we barred Mr. Talbert in April 2019 from filing further lawsuits without paying
the filing fees, Congress requires he plead imminent danger of serious physical injury to proceed
in forma pauperis. Neither speculation of disease nor disagreement with determinations made by
prison medical professionals constitute imminent danger of serious physical injury to meet
Congress’s exception to the filing bar under 28 U.S.C. § 1915(g). We deny Mr. Talbert’s in forma
pauperis motion and require he either pay the filing fees or amend his complaint to plead facts
showing he is in imminent danger of serious physical injury. We also deny his motion for a
preliminary mandatory injunction without prejudice should he pay the filing fee or meet the level
of imminent physical danger and then show us an indisputably clear right to compel prison medical
I. Alleged pro se facts
Mr. Talbert began experiencing “painful” swelling “up to his knees” on July 3, 2020 after
nearly four months in solitary confinement.1 Mr. Talbert suffers from an “oral infection[,] high
blood pressure[,] and high cholesterol[.]”2 Mr. Talbert requested and received a medical evaluation
after he began experiencing “chest pains.”3 The medical staff “examined” Mr. Talbert but did not
diagnose him with illness based on his complaint of pains.4
Mr. Talbert self-diagnoses his preexisting “heart conditions” and “oral infection” are
causing him “endocarditis” and the pains he now experiences are symptoms of endocarditis.5 He
opines this undiagnosed heart infection could prove to be “life-threatening” if left untreated.6 The
SCI Phoenix medical team lacks the “heart, skin, [and] blood . . . specialists” to properly diagnose
Mr. Talbert.7 He is not receiving “adequate [medical] care.”8 He requests “an immediate and
permanent injunction” so he may be evaluated at “Abington Hospital for examination, diagnosis,
and possible surgery.”9 His current pains and suspected endocarditis “meet[] 1915(g)
requirements” as imminent dangers of serious physical injury.10
II. Analysis
Mr. Talbert filed this complaint and moves to proceed in forma pauperis. The issue is
whether Mr. Talbert’s alleged suspected heart condition and his leg and chest pains pose imminent
dangers of serious physical injury to clear Congress’s screening bar and proceed in forma
pauperis.11 If so, Mr. Talbert must then demonstrate an “indisputably clear” need for a mandatory
preliminary injunction. Mr. Talbert fails to plausibly allege he is in imminent danger of serious
physical injury because his fears of developing a heart condition are speculative and he is receiving
medical attention in SCI Phoenix. We need not consider whether Mr. Talbert is entitled to an
injunction until we know the case may proceed.
The Prison Litigation Reform Act (“Act”) requires a prisoner who has previously had at
least three complaints dismissed for being “frivolous, malicious, or fail[ing] to state a claim upon
which relief may be granted” to allege he is “under imminent danger of serious physical injury” to
proceed in forma pauperis.12 Our Court of Appeals has defined “imminent dangers” as those which
are “impending[.]”13 Past instances of serious physical injury do not merit section 1915(g)’s
exception.14
We detailed Mr. Talbert’s history of filing complaints while in prison and his status as a
“three-strike” plaintiff in our April 5, 2019 Order in Talbert v. Carney.15 Mr. Talbert filed “at least
fifty-four lawsuits” in our District by April 2019.16 He had “at least four” pro se complaints
dismissed for being frivolous or failing to state a claim from 2013 to 2016.17 We reviewed his
April 2019 complaint in Talbert v. Carney under section 1915(g) and required Mr. Talbert plead
imminent danger of serious physical injury.18 We declined his motion to proceed in forma pauperis
because he did not plead imminent danger.19 Just last month we declined another of Mr. Talbert’s
motions to proceed in forma pauperis after he failed to allege imminent danger of serious physical
injury from headaches due to prison officials allegedly taking his property.20
A three-strike plaintiff fails to clear section 1915’s bar where they allege eventual or
suspected development of a serious health condition.21 For example, the incarcerated plaintiff in
Brown alleged his “irregular heartbeat, high blood pressure . . . [and] high cholesterol” constituted
imminent danger of serious physical injury because they “could contribute” to his contracting heart
disease.22 The plaintiff admitted doctors examined him but contested their findings and alleged
they rendered “inadequate medical treatment.”23 Judge Robreno denied the plaintiff’s motion to
proceed in forma pauperis and declined to consider the plaintiff’s “risk factors for heart disease”
as an imminent danger of serious physical injury because a speculated “impending” illness is not
an imminent danger.24
Pain stemming from diagnosed health issues does not clear Congress’s imminent danger
exception where the plaintiff receives a medical evaluation before filing a complaint.25 For
example, the three-strike incarcerated plaintiff in Tripati alleged “unbearable pain” after doctors
changed his medications and he developed a cyst in his right eye despite “receiving medical
attention” from doctors for both his bodily and eye pains.26 Judge McVerry construed the
complaint as the plaintiff “disagree[ing] with the quality of the medical care” provided by the
doctors and denied his motion to proceed in forma pauperis because the doctors evaluated the
plaintiff’s ailments.27
By way of comparison, a three-strike incarcerated plaintiff meets section 1915’s exception
if the prison denies medical care or evaluation and the plaintiff experiences pain as a result of the
denial.28 The incarcerated plaintiff in Williams alleged his previously diagnosed “terminal disease”
and “urinary tract infection” caused him “serious pain.”29 Our Court of Appeals granted the
plaintiff’s motion to proceed in forma pauperis and considered the pain ongoing because it
stemmed from his untreated previously diagnosed illnesses and thus satisfied Congress’s imminent
danger of serious physical injury requirement.30
As presently plead, Mr. Talbert’s leg and chest pains do not constitute imminent danger of
serious physical injury because he does not allege doctors neglected to examine him. We liberally
construe Mr. Talbert’s complaint as speculating he is experiencing an undiagnosed heart condition
which he concludes constitutes imminent danger of serious physical injury.31 An incarcerated
plaintiff does not allege imminent danger of serious physical injury by concluding he suffers from
a serious undiagnosed health condition even though he has been previously examined.32 Mr.
Talbert might clear Congress’s section 1915 requirement by alleging he has not received medical
attention for his leg and chest pain and the pain continues without abatement.33 But Mr. Talbert
admits SCI Phoenix doctors “examined” his now complained-of pains.34 Mr. Talbert instead
alleges these doctors fail to provide “adequate care.” Failure to provide “adequate care” is not
a basis to overcome Congress’s bar on serial filings by incarcerated persons without paying the
filing fees.36
III. Conclusion
We deny Mr. Talbert’s motion to proceed in forma pauperis. He claims he experiences leg
and chest pains, and, in his opinion, these pains are consistent with endocarditis. Doctors at SCI
Phoenix examined Mr. Talbert and did not diagnose him with endocarditis. Mr. Talbert fears these
doctors mistakenly cleared him as healthy and seeks a mandatory preliminary injunction to require
treatment at Abington Hospital. Suspected but undiagnosed illnesses are not imminent dangers of
serious physical injury. Medical attention for complained of health issues disposes of three-strike
litigant complaints. A three-strike litigant’s disagreement with a doctor’s professional opinion does
not meet Congress’s mandate in section 1915. We require Mr. Talbert either pay the required fees
or plead imminent danger of serious physical injury beyond fear of an undiagnosed illness. We
deny his motion for a preliminary mandatory injunction without prejudice should he proceed and
then be able to show us a clear indisputable right to the narrowly tailored relief.37
1 ECF Doc. No. 1 at ¶¶ 7, 11, 13.
2 Id. at ¶ 9.
3 Id. at ¶¶ 14-15.
4 Id. at ¶ 15.
5 Id. at ¶ 17.
6 Id. at ¶ 19.
7 Id. at ¶ 21.
8 Id. at ¶ 22.
9 Id. at p. 3.
10 Id. at p. 5.
11 As always, we “liberally construe[]” Mr. Talbert’s complaint, Liggon-Redding v. Estate of
Sugarman, 659 F.3d 258, 265 (3d Cir. 2011), and read his allegations in the light most favorable
to him. See Gibbs v. Cross, 160 F.3d 962, 966 (3d Cir. 1998). We require him to allege facts and
not “vague and [] conclusory” allegations he is in imminent danger of serious physical injury. Ball
v Famiglio, 726 F.3d 448, 468 (3d Cir. 2013) rev’d on other grounds, Coleman v. Tollefson, 135
S.Ct. 1759, 191 L.Ed.2d 803 (2015).
12 28 U.S.C. § 1915(g).
13 Abdul-Akbar v. McKelvie, 239 F.3d 307, 315-16 (3d Cir. 2001).
14 Id.
15 No. 19-1340, 19-1341, 2019 WL 1516940 (E.D. Pa. Apr. 5, 2019).
16 Id. at *3.
17 Id.
18 Id.
19 Id.
20 Talbert v. Wetzel, No. 20-3010, 2020 WL 3542334 (E.D. Pa. June 30, 2020).
21 Brown v. Beard, 492 F. Supp. 2d 474 (E.D. Pa. 2007); see also Daker v. Robinson, 802 Fed.
App’x 513, 515 (11th Cir. 2020) (denying in forma pauperis motion where plaintiff alleged
speculative contracting of HIV from use of “unsanitized clippers[.]”).
22 Id. at 478.
23 Id. at 478-79.
24 Id. at 479.
25 Tripati v. Hale, No. 13-830, 2013 WL 4054627 (W.D. Pa. Aug. 12, 2013).
26 Id. at *1-2.
27 Id. at *2.
28 Williams v. Forte, 135 Fed. App’x 520 (3d Cir. 2005); see also McAlphin v. Toney, 281 F.3d
709, 711 (8th Cir. 2002) (granting in forma pauperis motion where prison medical staff’s
“unconstitutional[] delay[]” of medical treatment caused plaintiff to suffer from infection).
30 Id.
31 ECF Doc. No. 1 at p. 5 (positing he is experiencing “a spreading infection” and his leg swelling
“is an indicator of heart failure[.]”).
32 Brown v. Beard, 492 F. Supp. 2d 474, 479 (E.D. Pa. 2007).
33 See Williams v. Forte, 135 Fed. App’x 520, 521 (3d Cir. 2005).
34 ECF Doc. No. 1 at ¶ 15.
35 Id. at ¶ 22.
36 Tripati v. Hale, No. 13-830, 2013 WL 4054627 (W.D. Pa. Aug. 12, 2013); Brown, 492 F. Supp.
2d 474.
37 A preliminary injunction may only granted upon a movant demonstrating “(1) the reasonable
probability of eventual success in the litigation and (2) that the movant will be irreparably injured
. . . if relief is not granted. . . . (3) the possibility of harm to other interested persons from the grant
or denial of the injunction, and (4) the public interest.” Bennington Foods LLC v. St. Croix
Renaissance, Grp., LLP, 528 F.3d 176, 179 (3d Cir. 2008). A preliminary “mandatory injunction”
is an “extraordinary remedy” which should not be granted lightly. Communist Party of Ind. v.
Whitcomb, 409 U.S. 1235, 1235 (1972). For a preliminary mandatory injunction, the plaintiff must
plead their “right to relief” is “indisputably clear.” Trinity Indus., Inc., v. Chi. Bridge & Iron Co.,
735 F.3d 131, 139 (3d Cir. 2013).
Mr. Talbert would need to demonstrate his deliberate indifference to serious medical needs claim
would likely succeed on the merits to be granted a preliminary injunction. Our Court of Appeals
has denied injunctive relief to deliberate indifference of serious medical needs in similar fact
scenarios to Mr. Talbert’s. Steedley v. McBride, 530 Fed. App’x 101, 103 (3d Cir. 2013). We need
not address the merits of Mr. Talbert’s claim for a preliminary mandatory injunction as he has not
cleared Congress’s exception to the filing bar under section 1915(g).