The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
WILLIE WHITE, JR. :
Plaintiff, :
:
v. : CIVIL ACTION NO. 23-CV-1735
:
MIKE SALTER, :
Defendant. :
MEMORANDUM
ROBRENO, J. JUNE 27, 2023
Plaintiff Willie White, Jr., an inmate at Lehigh County Prison, brings this pro se civil
action pursuant to 42 U.S.C. § 1983 complaining about a misconduct hearing. Before the Court
is White’s motion to proceed in forma pauperis. (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
Briefly, White asserts that on April 20, 2023, he attended a misconduct hearing. (Compl.
at 12.)1 He was told by the hearing official that, no matter what he said about the misconduct
charges, it would not change the punishment the official had already determined. (Id.) White
claims the hearing was arbitrary, and the official did not have evidence for his determination
before finding White guilty. (Id.)
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 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. 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 the hearing official violated his constitutional rights by
predetermining the result of the misconduct hearing fails to allege imminent danger of serious
physical injury. Indeed, White has failed to allege any physical harm caused by the conduct he
alleges. Accordingly, 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. ebrene
EDUARDO C.ROBRENO,J.