PAULSON v. COLOUCCI

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

MICHAEL W. PAULSON, :

Plaintiff, :

:

v. : CIVIL ACTION NO. 22-CV-0610

:

MARIO COLOUCCI, et al., :

Defendants. :

MEMORANDUM

YOUNGE, J. MARCH 2, 2022

Plaintiff Michael W. Paulson, a convicted prisoner currently incarcerated at Delaware

County Prison, brings this civil action pursuant to 42 U.S.C. § 1983, against several defendants

including: (1) Mario Coloucci (Deputy Warden); (2) Zachary Serody (Correctional Officer –

Sergeant); (3) Sergeant Brown (Correctional Officer – Sergeant); (4) Richard Leach (Chief of

Security); (5) A. Johnson (Correctional Officer); (6) John Doe (Correctional Officer); and (7)

The GEO Group, Inc. (Prison Management Corporation). (ECF No. 2.) Paulson seeks leave to

proceed in forma pauperis. (ECF No. 1.) For the following reasons, the Court will deny Paulson

leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915(g) and require that he pay the

full filing fee if he wishes to continue with his case.

I. FACTUAL ALLEGATIONS

Paulson’s Complaint asserts prison condition type claims in connection with his

placement in disciplinary segregation from December 24, 2021 through January 2, 2022. (ECF

No. 2 at 5, 14-19.)1 Paulson seeks $85.30 as reimbursement for stolen commissary items,

1 The Court adopts the pagination assigned to the Complaint by the CM/ECF system.

punitive damages in the amount of $1.7 million, and the termination of Sergeants Serody and

Brown. (Id. at 5.)

Paulson has a history of litigating meritless claims in this District. See Paulson v. Serody,

E.D. Pa. No. 21-3920 (dismissing complaint for failure to state a claim pursuant to 28 U.S.C. §

1915(e)(2)(B)(ii)); Paulson v. Kelly, E.D. Pa. No. 20-2653 (dismissing complaint for failure to

state a claim and pursuant to Heck v. Humphrey, 512 U.S. 477 (1994)); Paulson v. GEO Group.

Inc., E.D. Pa. No. 19-6013 (dismissing amended complaint in its entirety for failure to state a

claim pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii)).

II. STANDARD OF REVIEW

The in forma pauperis statute, 28 U.S.C. § 1915, allows indigent litigants to bring an

action in federal court without prepayment of filing fees, ensuring that such persons are not

prevented “from pursuing meaningful litigation” because of their indigence. Abdul-Akbar v.

McKelvie, 239 F.3d 307, 312 (3d Cir.2001) (en banc) (internal quotation marks omitted). But, as

Congress has recognized, people who obtain in forma pauperis status are “not subject to the

same economic disincentives to filing meritless cases that face other civil litigants,” and thus the

provision is susceptible to abuse. Id. (citing 141 Cong. Rec. S7498-01, S7526 (daily ed. May 25,

1995) (statement of Sen. Kyl)). In particular, the number of meritless claims brought in forma

pauperis by prisoners grew “astronomically” from the 1970s to the 1990s, id. (quoting 141

Cong. Rec. S14408-01, S14413 (daily ed. Sept. 27, 1995) (statement of Sen. Dole)), and

“[p]risoner litigation continues to account for an outsized share of filings in federal district

courts.” Jones v. Bock, 549 U.S. 199, 203 (2007) (internal quotation marks omitted).

“[I]n response to the tide of substantively meritless prisoner claims that have swamped

the federal courts,” Congress enacted the Prison Litigation Reform Act (“PLRA”) in 1996. Ball

v. Famiglio, 726 F.3d 448, 452 (3d Cir. 2013) (quoting Shane v. Fauver, 213 F.3d 113, 117 (3d

Cir. 2000)) (internal quotation marks omitted), abrogated in part on other grounds by Coleman

v. Tollefson, 135 S.Ct. 1759, 1763 (2015). Among other things, the PLRA implemented the so-

called “three strikes rule,” which provides:

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) (emphasis added). Put more simply, under the PLRA, a prisoner with three

prior strikes can obtain in forma pauperis status only if he is in imminent danger of serious

physical injury. Courts must consider a pro se prisoner’s allegations of imminent danger “under

our liberal pleading rules, construing all allegations in favor of the complainant.” Gibbs v.

Cross, 160 F.3d 962, 966 (3d Cir. 1998).

III. DISCUSSION

According to § 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. “[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 dismissals 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). “A strike-call

under Section 1915(g) . . . hinges exclusively on the basis for the dismissal, regardless of the

decision’s prejudicial effect.” Lomax v. Ortiz-Marquez, 140 S. Ct. 1721, 1724-1725 (2020),

abrogating Millhouse v. Heath, 866 F.3d 152, 161 (3d Cir. 2017). As noted above, at least three

of Paulson’s civil actions, filed while he was incarcerated, have been dismissed as frivolous or

because they failed to state a plausible claim for relief.

The Court concludes that the dismissals in the civil actions identified above count as

strikes against Paulson. Each was filed while Paulson was incarcerated, and each was dismissed

in its entirety for one of the reasons listed in § 1915(g). Accordingly, Paulson may not proceed

in forma pauperis unless he was in imminent danger of serious physical injury at the time he

brought his Complaint.

The “imminent danger” exception serves as a “safety valve” to ensure that a prisoner is

not subject to serious injury due to his inability to pay a filing fee. Ball, 726 F.3d at 467. The

imminent danger exception thus creates a narrow opening for a particular type of claim; it does

not give prisoners a license to swamp the court with claims whenever they successfully state a

claim of imminent danger. See Pettus v. Morgenthau, 554 F.3d 293, 297 (2d Cir. 2009)

(concluding that the exception’s “unmistakable purpose is to permit an indigent three-strikes

prisoner to proceed IFP in order to obtain a judicial remedy for an imminent danger,” not to

allow such a litigant to “file an unlimited number of lawsuits, paying no filing fee, for anything

from breach of a consumer warranty to antitrust conspiracy”). “Imminent dangers are those

dangers which are about to occur at any moment or are impending.” Abdul-Akbar, 239 F.3d at

315 (internal quotation marks omitted). A prisoner’s allegation that he faced imminent danger in

the past is “an insufficient basis to allow him to proceed in forma pauperis.” Ball, 726 F.3d at

467 (quoting Medberry v. Butler, 185 F.3d 1189, 1193 (11th Cir.1999)) (internal quotation marks

omitted). Practices that “may prove detrimental . . . over time,” such as poor care for arthritis,

also “do not represent imminent dangers,” as the harm is not “about to occur at any moment.”

Id. at 468 (quoting Abdul-Akbar, 239 F.3d at 315) (internal quotation marks omitted). Finally,

even if an alleged harm may in fact be “impending,” it does not satisfy the exception if it does

not threaten to cause “serious physical injury.” 28 U.S.C. § 1915(g); see also Ball, 726 F.3d at

468 (suggesting that certain complaints, such as being forced to work in inclement weather,

“may not be ‘danger’ at all”) (citing Martin v. Shelton, 319 F.3d 1048, 1050 (8th Cir. 2003)).

When considering whether imminent danger of serious physical injury has been alleged, courts

may reject “vague” or “conclusory” allegations as insufficient to provide a basis for IFP status.

Id.

The Court finds that the allegations in Paulson’s latest filing do not meet the imminent

danger standard of Section 1915(g). Paulson asserts that the alleged conditions of confinement

claims took place while he was in disciplinary segregation from December 24, 2021 through

January 2, 2022. (ECF. No. 2 at 17-19.) There are no allegations of imminent danger or any

future imminent danger. Accordingly, Paulson cannot qualify for the imminent danger

exception.

IV. CONCLUSION

For the foregoing reasons, the Court will deny Paulson’s Motion to Proceed In Forma

Pauperis pursuant to 28 U.S.C. § 1915(g). Should Paulson desire to litigate his claims, he must

pay the full filing fee in advance. An appropriate Order follows.

BY THE COURT:

/s/ John Milton Younge

JOHN M. YOUNGE, J.