BURK v. WELLPATH

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

ISHMAEL A. BURK, et al., :

Plaintiff, :

:

v. : CIVIL ACTION NO. 23-CV-4233

:

WELLPATH, et al., :

Defendants. :

MEMORANDUM

SCHMEHL, J. /s/ JLS JANUARY 16, 2024

Plaintiff Ishmael A. Burk, a convicted prisoner currently housed at SCI Chester and

frequent litigator in this Court and others,1 has filed a pro se civil action pursuant to 42 U.S.C. §

1983 along with several co-plaintiffs complaining the Defendants discriminate on the basis of

race in providing medical care at SCI Chester. Before the Court is Burk’s motion to proceed in

forma pauperis. (ECF No. 2.) Because Burk 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 leave to proceed in forma pauperis and require that Burk pay the full filing

fee if he wishes to continue with his case.

I. FACTUAL ALLEGATIONS

Briefly, Burk and his co-plaintiffs assert Eighth Amendment claims alleging that

Defendants discriminate on the basis of race in the provision of medical care. (Compl. (ECF No.

1 Burk has filed at least thirteen prior cases in this Court. He has also filed numerous

cases in the United States District Court for the Middle District of Pennsylvania and the United

States District Court for the District of New Jersey. Notably, on the form Burk used to file the

current case, in answer to the question asking him if he had ever filed any prior cases in federal

or state court relating to the conditions of his imprisonment, he listed only one prior case.

(Compl. at 13-14.)

2) at 16.)2 They assert that they are African American or Hispanic, and Defendant Wellpath

offers white inmates better care “and have misdiagnosed the plaintiffs on multiple occasion[s]

because of the color of their skin.” (Id. at 17.) Notably, Burk fails to make any allegations about

his own problems; rather, the co-plaintiffs collectively allege their “injuries are untreatable to a

point Wellpath has completely ignored their calls for medical treatment.” (Id.) They also allege

collectively that “plaintiffs injuries various [sic] from a collapse lung, injured back, wrist injury,

foot injury, neck injury, depression & anxiety.” (Id. at 7.)

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:

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

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. Burk has accumulated three strikes.

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

In Burk v. Leonhauser, No. 19-3121, 2019 WL 3889628, (E.D. Pa. Aug. 19, 2019), this Court

dismissed Burk’s complaint, alleging Fourth and Fourteenth Amendment claims that police

planted evidence, as barred by Heck v. Humphrey, 512 U.S. 477, 486-87 (1994). This dismissal

constituted a strike for purposes of § 1915(g). Garrett v. Murphy, 17 F. 4th 419, 424 (3d Cir.

2021) (“A suit dismissed under Heck is dismissed for failure to state a claim and counts as a

strike.”). In Burk v. Little, No. 23-1005, 2023 WL 6962062 (E.D. Pa. Oct. 20, 2023), after

Burk’s case was partially dismissed on statutory screening pursuant to 28 U.S.C. §

1915(e)(2)(B)(ii) for failure to state a claim, see id ECF No. 26, the balance of the case alleging

deliberate indifference to serious medical needs was then dismissed with prejudice in its entirety

for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6) in an opinion by

the Honorable Chief Judge Juan R. Sánchez. Burk, 2023 WL 6962062, at *3 (“While his sprain

was undoubtedly painful, in the absence of any allegations or evidence to suggest it was

otherwise debilitating or permanent, Burk has failed to state a claim that the denial of medical

care for it violated his rights under the Eighth Amendment”). This dismissal constituted Burk’s

second strike. Ball v. Famiglio, 726 F.3d 448, 466 (3d Cir. 2013) (“because the Court dismissed

the complaint on defendants’ Rule 12(b)(6) motion and we affirmed, that dismissal caused Ball

to accrue a PLRA strike”). In Burk v. Rugby Lab’ys, No. 23-11846, 2023 WL 5310534, at *1

(E.D. Mich. Aug. 17, 2023), the United States District Court for the Eastern District of Michigan

dismissed Burk’s complaint alleging an Eighth Amendment violation concerning multi-vitamins

he purchased from the prison commissary under 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b)(1)

with prejudice for failure to state a claim upon which relief may be granted. This dismissal

constituted Burk’s third “strike” for purposes of § 1915(g).

2. The Complaint does not allege imminent danger.

Because Burk has accumulated three strikes, he is “out” and 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

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.”).

The co-plaintiffs’ allegations about discrimination in the provision of medical care at SCI

Chester fail to allege that Burk is in imminent danger of serious physical injury. While he and

his co-plaintiffs make vague, generalized allegations about receiving inadequate medical care in

the past, Burk fails to allege any imminently dangerous medical condition that is untreated due to

the alleged racism. Accordingly, the Court finds that the imminent danger exception does not

apply.

III. CONCLUSION

Since Burk 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 of the case, and

since he has not alleged he was in imminent danger when the co-plaintiffs submitted the

Complaint, the Court will require Burk to pay the fees to commence this civil action. For these

reasons, the Court will deny Burk’s Motion to Proceed in forma pauperis pursuant to 28 U.S.C. §

1915(g). Should Burk desire to litigate claims in this case, he must pay the full filing fee in

advance. An appropriate Order follows.

BY THE COURT:

/s/ Jeffrey L. Schmehl

JEFFREY L. SCHMEHL, J.