TAYLOR v. DOC

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

CORNELIUS TAYLOR, :

Plaintiff, :

:

v. : CIVIL ACTION NO. 23-CV-0419

:

DOC, et al., :

Defendants. :

MEMORANDUM

BAYLSON, J. APRIL 21, 2023

Plaintiff Cornelius Taylor, a convicted prisoner currently incarcerated at SCI Houtzdale,

filed this pro se civil action pursuant to 42 U.S.C. § 1983 (ECF No. 1.) Currently before the

Court are Taylor’s Motion to Proceed In Forma Pauperis and Prisoner Trust Fund Account

Statement (ECF Nos. 4, 5.) Because Taylor 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 Taylor 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, Taylor alleges that beginning in 2001, he was prescribed Risperdal by prison

medical officials. (Complaint, (“Compl.”) ECF No. 1 at 5.) He claims that he was never

provided a test to avoid the side effects of the drug. (Id. at 4, 5.) He alleges that he has

developed male breasts as a result of taking the medication. (Id. at 5.) Taylor names as

Defendants the Pennsylvania Department of Corrections, Veteran’s Medical Hospital in

Philadelphia, Pennsylvania and various unnamed staff and psychiatrists employed there, Dr.

Kale, a psychiatrist employed by SCI-Dallas, various unnamed staff and psychiatrists employed

by SCI Rockview, and Dr. Bloom, a psychiatrist employed by SCI Houtzdale. (Id. at 1-3.) He

seeks an award of money damages. (Id. at 5.)

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. Taylor has accumulated three strikes.

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

See Taylor v. DOC, No. 20-0131 (W.D. Pa. Aug. 17, 2020) (adopting Report and

Recommendation dismissing complaint with prejudice for failure to state a claim); Taylor v.

Smith, No. 20-0170 (W.D. Pa. Sept. 28, 2020) (order adopting Report and Recommendation

dismissing complaint with prejudice for failure to state a claim); Taylor v. Hall, No. 20-4686

(E.D. Pa. Oct. 22, 2020) (complaint dismissed as time-barred under 28 U.S.C. 1915(e)(2)(B)(ii)).

See also Taylor v. Hall, No. 21-1304 (3d Cir. July 8, 2021) (denying motion to proceed in forma

pauperis on appeal because Taylor had accumulated three strikes against him under 28 U.S.C.

1915(g)).

2. The Complaint does not allege imminent danger.

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

forma pauperis in federal court unless he can show that he was 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.”).

Taylor’s allegation is that he is suffering a side effect of having taken Risperdal as

prescribed by prison medical personnel. Specifically, he alleges he has enlarged male breasts,

also known as gynecomastia. He does not allege that this condition places him in imminent

danger and, under liberal pleading rules, construing all allegations in Taylor’s favor, the Court

can identify nothing in his allegations that would support a finding of imminent danger.

Accordingly, the Court finds that the imminent danger exception does not apply. See Hoye v.

Risperdal Drug Lawsuit Source, No. 18-1013, 2019 WL 493961, at * (W.D. Pa. 2019) (adopting

report and recommendation that gynecomastia that developed from taking Risperdal in past did

not constitute imminent danger at the time the complaint was filed).

III. CONCLUSION

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

and he has not alleged he was in imminent danger of serious physical injury 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 Taylor’s Motion to Proceed in forma pauperis pursuant to 28

U.S.C. § 1915(g). Should Taylor desire to litigate his claims, he must pay the full filing fee in

advance. An appropriate Order follows.