Opinion

MCCRAY v. SOCIAL SECURITY ADMINISTRATION

Court
District Court, E.D. Pennsylvania
Filed
Jan 4, 2024
Cited by
0 cases
Authority
More cited than 29.0%

The opinion

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

DONALD MCCRAY, :

Plaintiff, : CIVIL ACTION

:

v. : NO. 23-CV-3441-KSM

:

SOCIAL SECURITY :

ADMINISTRATION, :

Defendant. :

MEMORANDUM

MARSTON, J. January 4, 2024

Plaintiff Donald McCray, a convicted prisoner in custody in Texas, filed this pro se civil

action against the Social Security Administration. (Doc. No. 1 (initial Complaint); Doc. No. 17

(Amended Complaint).) In a prior Order filed on October 2, 2023, McCray was directed to pay

the filing fee for this case or submit an application to proceed in forma pauperis. (Doc. No. 7.)

McCray filed an application on November 8, 2023.1 (Doc. No. 11.) He filed a second

application on December 19, 2023. (Doc. No. 14.) Because McCray has obtained three prior

“strikes” and has not alleged an imminent danger of serious physical injury pursuant to 28 U.S.C.

§ 1915(g), the Court will deny McCray 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

Although not entirely clear, McCray’s allegations appear to concern his denial of Social

Security retirement benefits due to his conviction on criminal charges. (Doc. No. 1 at 1 (“The

1 The application is currently noted on the docket as a “Petition Notice.” It contains McCray’s in

forma pauperis Motion and numerous other pages described later in this Memorandum. In the

accompanying Order, the Clerk of Court will be directed to designate Doc. No. 11 as a Motion for Leave

to Proceed In Forma Pauperis and docket the other pages as exhibits to the Motion.

following documents is [sic] undisputed proof crime in violation of federal law have been used

to denied [sic] Mr. Donald McCray social security retirement benefits.”) (superfluous

parentheses and punctuation omitted); see also Doc. No. 17 at 5 (“Plaintiff Donald Mccray is

entitle[d] to his social security payments starting May 23, 2022 from 1 to 100,000 dollars[,] but

he demands $1.2 million, as the U.S government ha[s] denied him . . . .”) (superfluous

parentheses and punctuation omitted).)2 He also appears to contest the denial of Medicare

benefits. (Doc. No. 1 at 5 (stating McCray sought coverage in July 2023 for prescription drug

coverage); Doc. No. 17 at 4–5 (referencing the denial of “medicare entitle: benefits” and the

denial of “medical/doctor treatment”).)

In addition to these allegations, McCray’s initial Complaint3 also makes vague references

to a trial to be conducted in Texas, which he claims is presided over by someone who is

impersonating a judge and involves the improper prosecution of a nonparty because he is African

American. (Doc. No. 1 at 7–11.) McCray’s Amended Complaint also references his own arrest

for unknown charges and argues that it amounts to “kidnapping/slavery” by the U.S. Marshals

Service and is a violation of the Federal Racketeer Influenced and Corrupt Organizations Act

(“RICO”). (Id. at 4–5.)4

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

3 Although McCray’s Amended Complaint replaces the initial Complaint as the operative

pleading, the Court, in an abundance of caution, considers the allegations in both pleadings in deciding

this Motion.

4 McCrary also adds allegations about this Court’s initial assignment of this case to a magistrate

judge. (See Doc. No. 17 at 3 (claiming that failure to assign the case to a United States District Judge

amounts to the “crime of treason”).) However, as the Court previously explained, the case was initially

“incorrectly deemed by the Clerk of Court to be an appeal of a denial of Social Security disability

benefits.” (Doc. No. 10 at 1.) Once the Court discovered the error, the case was reassigned to the

Honorable Karen Spencer Marston, United State District Judge. (Doc. No. 9.)

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)).

“[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); accord Abdul-Akbar, 239 F.3d at 310–11. Put 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.

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).

III. DISCUSSION

A. McCray Has Accumulated Three Strikes.

The Court concludes that McCray, who has a long history of filing frivolous cases in the

federal courts in Texas, has accumulated at least three strikes for purposes of § 1915(g). See,

e.g., McCray v. Harris County, No. 11-1469 (S.D. Tex.) (Doc. No. 6 (finding that at least nine

prior cases filed by McCray as a prisoner had been dismissed as frivolous)). McCray is also

subject to a prefiling injunction in the courts within the jurisdiction of the United States Court of

Appeal for the Fifth Circuit barring him from filing any pro se cases in forma pauperis without

first obtaining permission of a judge of the forum court. McCray v. Lower, 96 F.3d 1443 (5th

Cir. 1996). That injunction was reiterated in a more recent case when McCray attempted to

bring an original proceeding before the Fifth Circuit. In re: Donald Ray McCray, No. 21-90033

(5th Cir. Oct. 14, 2021) (“We imposed sanctions against McCray in McCray v. Lower. . . . This

sanction is still in force.”). The order has been applied in numerous cases McCray attempted to

file in Texas federal courts. See, e.g., McCray v. Timmons, No. 22-73 (N.D. Tex. Aug. 11, 2022)

(Doc. No. 4); McCray v. TDCJ, No. 21-111 (N.D. Tex. Aug. 11, 2022) (Doc. No. 14).

An independent review of the cases filed by McCray confirms that he has accumulated at

least three strikes for purposes of § 1915(g).5 See McCray v. Lower, No. 96-20516 (5th Cir. Oct.

15, 1996) (appeal dismissed as frivolous); McCray v. Tolle, No. 96-10491 (5th Cir. Oct. 29,

1996) (appeal dismissed as frivolous); McCray v. Barber, No. 96-1509 (N.D. Tex. Sept. 9, 1996)

(case dismissed as frivolous); McCray v. Harris County, No 96-2262 (S.D. Tex. Oct. 25, 1996)

(case dismissed for failure to state a claim); McCray v. Tippetts, No. 01-501 (E.D. Tex. Aug. 8,

2001) (case dismissed as frivolous).

B. McCray’s Complaint Does Not Allege Imminent Danger.

Because McCray has accumulated three strikes, he can no longer proceed in forma

pauperis in any 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

5 The PLRA became effective on April 26, 1996. See Deutsch v. United States, No. 95-5222,

1996 WL 466921 (E.D. Pa. July 8, 1996) (noting effective date). “[D]ismissals for frivolousness prior to

the passage of the [Prison Litigation Reform Act] are included among [a plaintiff’s] three [strikes].”

Keener v. Pa. Bd. of Prob. & Parole, 128 F.3d 143, 144–45 (3d Cir. 1997).

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.,

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 finds that the allegations in McCray’s Complaint and Amended Complaint do

not meet the imminent danger standard of Section 1915(g). McCray asserts that he has been

denied Medicare and Social Security retirement benefits. There are no allegations of imminent

danger in these claims. Neither do his vague allegations concerning the trial of another

individual or McCray’s own arrest suggest imminent danger to McCray.6 Accordingly, the

Court finds that the imminent danger exception does not apply.

6 As noted, McCray’s first Motion to Proceed In Forma Pauperis was entered on the docket as a

“Petition Notice” because that is the title McCray put on the first page of the submission. (Doc. No. 11 at

1.) The submission contains nonsensical assertions about a “mandatory judgment” (id. at 1–2), references

to a case he appears to have filed in the United States Court of Appeals for the Eighth Circuit (id. at 2),

and states that a “dead U.S. president is a good U.S. president under the Texas Confederate law. . . . F***

with me and see – I live in Texas.” (Id. at 3 (superfluous parenthetical and punctuation marks deleted)).

He also makes threats to kill President Biden and former House Speaker Kevin McCarthy (id. at 7), and

attached copies of grievance forms he submitted to prison officials about the law librarian, lack of

stationery, lack of computers, and mail procedures (id. at 14–19), a statement that he will attempt to kill a

Texas judge (id. at 20–21), a reference to a case he filed in Brooklyn, New York (id. at 22), a claim that

the Texas governor has kidnapped him and fifty others—presumably because he is incarcerated (id. at 22–

24), and a complaint that prison food has caused him stomach distress (id at 26–29). None of the

assertions in the submission accompanying McCray’s Motion, which are not part of his claims in his

Complaint, including the claim of stomach distress, plausibly indicates that he is in imminent danger of

serious physical injury.

IV. CONCLUSION

Because McCray 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

McCray’s Motion to Proceed in forma pauperis pursuant to 28 U.S.C. § 1915(g). Should

McCray desire to litigate his claims, he must pay the full filing fee in advance. An appropriate

Order follows, which gives McCray an opportunity to pay the fees in the event he seeks to

proceed with this case.

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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