Opinion

WHITE v. GONZALES

Court
District Court, E.D. Pennsylvania
Filed
Jun 21, 2022
Cited by
0 cases
Authority
More cited than 28.9%

The opinion

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

WILLIE WHITE, :

Plaintiff, :

:

v. : CIVIL ACTION NO. 22-CV-2361

:

CARLOS GONZALES, et al., :

Defendants. :

MEMORANDUM

ROBRENO, J. JUNE 21, 2022

Plaintiff Willie White, a pretrial detainee housed at Lehigh County Prison, brings this pro

se civil action pursuant to 42 U.S.C. § 1983 complaining about the food he is served. Before the

Court is White’s motion to proceed in forma pauperis. (ECF No. 1.) Because White has

obtained three prior “strikes” and because he has not shown an imminent danger of serious

physical injury, pursuant to 28 U.S.C. § 1915(g) the Court will deny White leave to proceed in

forma pauperis and require that he pay the full filing fee if he wishes to continue with his case.

I. FACTUAL ALLEGATIONS

Briefly, White, who appears to assert he suffers from a diabetic condition, alleges that the

diet he is served at LCP contains too many starches. (Compl. at 4.)1 He asserts he is served 8-10

slices of white bread a day and potatoes. (Id.) He alleges the diet is unhealthful, demonstrates

deliberate indifference to his health, medical malpractice, and gross negligence. (Id.) He names

as Defendants Carlos Gonzales, the LCP kitchen supervisor, and Amanda Benner, the head of

the medical department at LCP. (Id. at 1.) He seeks as relief that he be provided with a private

dietician, a new kitchen supervisor, and a diet that contains fewer starches. (Id. at 4.)

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

II. “THREE-STRIKE” ANALYSIS

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)).

“[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 at the time he brings his case to court. 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).

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, 1724-25 (2020), abrogating Millhouse v. Heath, 866 F.3d 152, 161

(3d Cir. 2017).

1. White has accumulated three strikes.

The Court concludes that White has accumulated three strikes for purposes of § 1915(g).

In White v. L.C.J. / Inmate Accts., No. 22-1941, 2022 WL 1720077, at *2 (E.D. Pa. May 27,

2022), the Court dismissed with prejudice pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) a complaint

filed by White alleging violations of the federal mail fraud statute, among other things. This

dismissal constituted White’s first “strike” for purposes of § 1915(g). In White v. Massini, No.

22-1230, 2022 WL 1748531 (E.D. Pa. May 31, 2022), after permitting White an opportunity to

amend claims found initially to be deficient, the Court dismissed with prejudice pursuant to 28

U.S.C. § 1915(e)(2)(B)(ii) his amended complaint raising claims against Defendant Massini

under the Prison Rape Elimination Act and for sexual assault, as well as all other claims against

all other Defendants because White failed to allege a plausible basis for supervisory liability.

(Id., at *2-4.) This dismissal constituted White’s second “strike” for purposes of § 1915(g). In

White v. Gaglione, No. 22-1974, 2022 WL 1774132 (E.D. Pa. June 1, 2022), the Court dismissed

with prejudice pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) White’s complaint alleging an

unreasonable search claim, property loss claim, Fourteenth Amendment due process claims, and

failure to supervise/train claims. This dismissal constituted White’s third “strike” for purposes of

§ 1915(g).

2. The Complaint does not allege imminent danger.

Because White has accumulated three strikes, he is “out” and can no longer proceed in

forma pauperis in federal court unless he can show that he is in imminent danger of serious

physical injury at the time he brought his Complaint. The “imminent danger” exception to the

three-strikes rule 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. It “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.” Brown v. Lyons, 977 F.

Supp. 2d 475, 481-82 (E.D. Pa. 2013) (citing Pettus v. Morgenthau, 554 F.3d 293, 297 (2d Cir.

2009)). “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). Past dangers are

not imminent dangers. See Ball, 726 F.3d at 467. Vague, general, or conclusory allegations are

likewise insufficient to establish that a plaintiff is in imminent danger. Id. Finally, “there must

be a nexus between the imminent danger a three-strikes prisoner alleges to obtain IFP status and

the legal claims asserted in his complaint.” Pettus, 554 F.3d at 297; see also Ball v. Hummel,

577 F. App’x 96, 98 n.1 (3d Cir. 2014) (per curiam). In other words, the claimed imminent

danger must relate to the legal claims the prisoner pursues. Id.; see also Brown v. U.S. Dist. Ct.,

E. Dist., No. 13-7229, 2014 WL 1225878, at *1 (E.D. Pa. Mar. 25, 2014) (“In short, § 1915(g)

requires two things: the allegation of imminent danger and a claim for relief that if granted will

preclude the danger from becoming a reality.”).

White’s allegation that he is served a diet too rich in starchy foods fails to allege

imminent danger of serious physical injury. Indeed, he has failed to allege any physical harm

caused by the Defendants’ conduct. Accordingly, the Court finds that the imminent danger

exception does not apply.

I. CONCLUSION

Since White is a “three-striker” who is prohibited from proceeding in forma pauperis

unless he is in imminent danger of serious physical injury at the time of filing, and since he was

not in imminent danger when he submitted his Complaint, the Court will require him to pay the

fees to commence this civil action. For these reasons, the Court will deny White’s Motion to

Proceed in forma pauperis pursuant to 28 U.S.C. § 1915(g). Should White desire to litigate his

claims, he must pay the full filing fee in advance. An appropriate Order follows.

BY THE COURT:

Cauarde C. ebrane

EDUARDO C. ROBRENO, J.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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