WHITE v. PRIME CARE CORP

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

WILLIE WHITE, :

Plaintiff, :

:

v. : CIVIL ACTION NO. 23-CV-1583

:

PRIME CARE CORP, et al., :

Defendants. :

MEMORANDUM

ROBRENO, J. JUNE 27, 2023

Plaintiff Willie White, an inmate at Lehigh County Prison (“LCP”), brings this pro se

civil action pursuant to 42 U.S.C. § 1983 complaining about a reduction in his daily diabetic

testing regime. Before the Court is White’s motion to proceed in forma pauperis.1 (ECF No. 4.)

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

White, who is African American and suffers from diabetes, asserts that on April 6, 2023

he was in line at the LCP Medical Department to get his afternoon “Accu-Check” blood sugar

test. (Compl. (ECF No. 1) at 1.)2 He was told that his testing regimen was being changed from

1 In an Order filed on May 1, 2023 (ECF No. 3), White was directed to pay the filing fee

for this case or submit an application to proceed in forma pauperis and a copy of his institutional

account statement. When he failed to comply with the Order, the Court dismissed this case

without prejudice for failure to prosecute on June 14, 2023. (ECF No. 4.) White submitted his

application, but not his account statement on June 22, 2023. (ECF No. 5.) The Court will

reopen this case and consider his application.

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

four times per day to two times per day, at 5:00 a.m. and 9:00 p.m., because his blood sugar

numbers “have been excellent in the last month.” (Id.) White asserts this was not true and that

his numbers “have been in the 200’s + or very high hundreds.” (Id.) He also contends that his

A1C number increased from 7.6 or 7.8 in February 2023 to 7.9 on April 14, 2023. (Id. at 2.) He

believes the change in testing was racially motivated because a non-African American inmate,

with whom he was involved in an incident the day before, did not have his testing regimen

changed. (Id. at 1.) He asserts that he is being punished by having to wait sixteen hours between

tests as an insulin-dependent diabetic. (Id.) Apparently aware that he has already incurred three

“strikes” under § 1915(g), White makes a specific contention that he is in imminent danger due

to the reduced daily testing because it “puts me at a higher risk for another stroke, heart attack,

diabetic coma, or even worse, yes death.” (Id. at 2.) He also contends that he had in the past

“been refused insulin when my numbers have been well over 200.” (Id.) Finally, he contends

that his “blood sugar began to spike” and he sustained “one of my diabetic fainting episode on

April 12th.” (Id. at 8.)

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 the case with prejudice

pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii), finding that his amended complaint failed to allege

plausible claims. 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. In Ball, the United States Court of Appeals for

the Third Circuit has held that practices that “may prove detrimental . . . over time,” such as poor

care for chronic conditions, also “do not represent imminent dangers,” as the harm is not “about

to occur at any moment or are impending.” Id. at 468 (quoting Abdul-Akbar, 239 F.3d at 315)

(internal quotation marks omitted). Also, 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.”).

The Court concludes that White’s allegation that prison officials have reduced the

number of daily blood glucose tests he receives from four to two fails to allege imminent danger

of serious physical injury. Beyond the holding in Ball, which rejected a claim that poor

treatment for a specific prior eye injury could support the imminent danger exception due to

future worsening of the prisoner’s eyesight, there appears to be no published precedent from the

Third Circuit discussing whether White’s precise type of non-immediately life-threatening

allegation of imminent danger caused by a chronic condition can satisfy the imminent danger

requirement. But see Brown v. Wolf, 705 F. App’x 63, 65 (3d Cir. 2017) (per curiam) (holding

that prisoner suffering from advancing prostate cancer sufficiently alleged the imminent danger

requirement where he stated that the failure of officials to provide him with adequate information

resulted in his inability to be treated or make an informed decision of whether to accept or reject

the diagnostic/treatment offered, and that his condition was “worsening at a rapid pace,” as

shown by Prostate–Specific Antigen scores). Other courts have not been consistent when

confronted with whether allegations of a denial of treatment for a non-immediately life-

threatening chronic disease, such as diabetes, satisfy the imminent danger exception.

Some courts have concluded that a failure to treat a chronic condition may satisfy the

imminent danger exception. McFadden v. Noeth, 827 F. App’x 20, 25 (2d Cir. 2020) (per

curiam) (“McFadden plausibly alleged that he was in imminent danger, having received no

treatment for his chronic condition [Hepatitis C] dating back to his diagnosis”); Lynn v.

Willnauer, 823 F. App’x 642, 648 (10th Cir. 2020) (allegation that prisoner was denied pain and

“keep-on-person” medication, despite “awfully painful heart spasms,” and denied transportation

to the hospital for treatment of an imminent heart attack or stroke when his troponin levels were

elevated, was sufficient to allege imminent danger, noting that while prisoner’s “disagreement

with the adequacy of his treatment will be relevant to the merits of his claims, at this point, he

has sufficiently alleged an imminent danger of serious physical injury”); Boles v. Colorado Dep’t

of Corr., 794 F. App’x 767, 771 (10th Cir. 2019) (holding that specific allegations of prison

officials refusing to treat a chronic condition, irritable bowel syndrome, that causes severe pain

or aggravates debilitating symptoms are enough to facially satisfy the imminent-danger

exception); Vandiver v. Prison Health Servs., Inc., 727 F.3d 580, 587 (6th Cir. 2013)

(incremental harm resulting from failure to treat chronic conditions, diabetes and Hepatitis C,

may satisfy § 1915(g) standard); Vandiver v. Vasbinder, 416 F. App’x 560, 562-63 (6th Cir.

2011) (finding that the imminent danger exception was satisfied where the plaintiff suffered from

diabetes and Hepatitis C and alleged that he was denied treatment); Brown v. Johnson, 387 F.3d

1344, 1350 (11th Cir. 2004) (describing the failure to treat HIV and hepatitis as causing

imminent danger of serious physical injury); Ibrahim v. District of Columbia, 463 F.3d 3, 6-7

(D.C. Cir. 2006) (holding that a serious disease, like Hepatitis C, that could result in serious

harm or death, is a “serious physical injury”).

Other courts considering chronic disease situations, including those specifically involving

diabetes management, have held the opposite. See Tucker v. Corizon Corr. Health Care, No. 18-

1725, 2019 WL 2713289, at *2 (6th Cir. Apr. 22, 2019) (holding that the district court did not

abuse its discretion by dismissing prisoner’s complaint without prejudice under the “three

strikes” provision where prisoner’s imminent danger allegations were conclusory, unsupported,

and contradicted by the exhibits attached to his complaint that showed he was “being treated for

his diabetes and monitored for his hepatitis”); Reberger v. Baker, 657 F. App’x 681, 684 (9th

Cir. 2016) (per curiam) (holding that suggestion in complaint that prisoner’s administrative

segregation may cause him to be denied a dose of an HIV medication “that could lead to

medication[ ] resistance,” was too vague and speculative to invoke the exception to the three-

strikes rule where the prisoner did not explain how administrative segregation would impact his

medication or doses); Edmond v. Tex. Dept. Of Corr., Nos. 97-10819, 97-11170, 97-11202, 1998

WL 723877, at *3 (5th Cir. Oct. 7, 1998) (inmate’s allegations that prison officials’ refusal to

provide adequate medical care had caused seizures and nervous attacks were “insufficient to

meet the threshold requirement of imminent danger of physical injury”); Harrison v. Arasor, No.

11-712, 2011 WL 1831703, at *1-2 (N.D. Tex. Apr. 20, 2011) (allegations of insufficient

accommodations for management of inmate’s diabetes did not show imminent danger of serious

physical injury); Williams v. Louisiana, No. 07-0602, 2007 WL 1747010, at *2, *4 (E.D. La.

May 7, 2007) (prisoner’s claims that he “ha[d] not been furnished a specialized diet for his

diabetes and hypertension” were insufficient to make the showing required by § 1915(g));

Patterson v. Dretke, No. 04-0132, 2004 WL 1205126, at *2 (N.D. Tex. June 2, 2004) (finding

that plaintiff had not presented facts showing imminent danger of serious physical injury

resulting from denial of treatment for his Hepatitis C); Ford v. Foti, No. 01-1970, 2001 WL

845461, at *2 (E.D. La. July 25, 2001) (inmate’s allegations that prison doctors refused to

administer proper treatments for Hepatitis C failed to allege physical danger sufficient to

overcome the § 1915(g) bar); see also Baughman v. Seale, 761 F. App’x 371, 379-81 (5th Cir.

2019) (concluded that failing to provide glucose “fingerstick tests” prior to insulin injections

does not, per se, amount to deliberate indifference to a serious medical need – the same type of

underlying claim presented by White).

The Court concludes that White has not successfully alleged the imminent danger

exception because he does not assert he was being threatened with the denial of treatment for his

diabetes, creating a danger of a serious physical injury at the time he filed his case. He concedes

that he receives insulin treatment.3 He also concedes that his blood glucose is still being

checked, just not as often each day as he believes adequate, because further checking was

deemed unnecessary by medical personnel. More importantly, there is no assertion that White

suffers from hypoglycemia as a result of being given less frequent tests nor that he receives an

3 The allegation the White had “been refused insulin when my numbers have been well

over 200” (Compl. at 2), fails to satisfy the imminent danger requirement because White refers to

an isolated past incident, not a present danger of a serious physical injury at the time he filed his

case.

improper insulin dose as a result of the reduced testing regimen. Indeed, other than his isolated

contention of a past incident where his “blood sugar began to spike” and that he sustained a

diabetic fainting episode (Compl. at 8), White only asserts vaguely that he is at risk of future

diabetic complications. Because this type of future risk is not one “about to occur at any moment

or [] impending,” Abdul-Akbar, 239 F.3d at 315, the Court finds that the imminent danger

exception does not apply.

I. CONCLUSION

Because 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 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, which gives

White an opportunity to pay the fees to proceed if he seeks to do so.

BY THE COURT:

Cauarde C. Rebrene

EDUARDO C.ROBRENO,J.