Gordon v. Buebendorf

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF PENNSYLVANIA

MICHAEL LEE GORDON, :

Plaintiff :

CIVIL ACTION NO. 3:19-626

v. :

(Judge Mannion)

BUEBENDORF, SIS, et al., :

Defendants :

MEMORANDUM

Presently before the court is a motion to remove Plaintiff’s in forma

pauperis status, filed by the United States of America. (Doc. 48). For the

reasons set forth below, Defendant’s motion will be granted.

I. Background

On April 11, 2019, Plaintiff, Michael Lee Gordon, an inmate confined in

the United States Penitentiary, Lewisburg (USP-Lewisburg), Pennsylvania,

filed the above captioned Bivens1 action pursuant 28 U.S.C. §1331. (Doc. 1).

Without providing specific facts of the imminent danger on the date of filing

his complaint, Plaintiff states the following:

Note: My life, safety and personal well-being is in imminent threat

1Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971)

(holding that there exists an implied private action for damages against

federal officers alleged to have violated a citizen’s constitutional rights).

of danger of a serious physical harm, injury and/or death here at

USP-Lewisburg at the filing of this complaint!

Id. Plaintiff then proceeds to allege that he “does sue each defendant in their

individual and official capacities for violations of his constitutional rights to be

free from cruel and unusual punishments, to due process and for various acts

of retaliation and discrimination, for forfeiture of ninety-one (91) books of

United States postage stamps, and other rights retained by Plaintiff; thereby

placing Plaintiff’s life, safety and personal well-being in an imminent threat

and imminent danger of a serious physical harm, injury and/or death for the

soul (sic) purpose to retaliate, discriminate, to deny Plaintiff Due Process

and/or to subject Plaintiff to cruel and unusual punishment; because Plaintiff

is transgender and Plaintiff did utilize his constitutional Due Process rights to

file grievances and to petition for redress of those grievances and to petition

this Honorable Court for redress.” Id.

On April 29, 2019, Plaintiff filed an amended complaint. (Doc. 8).

Plaintiff alleges that on April 9, 2019, he was sexually assaulted by inmate

Gerald Spillman. Id. After the issuance of several administrative orders by this

Court, (Docs. 22, 23), on June 14, 2019, Plaintiff filed a motion for leave to

proceed in forma pauperis, along with a copy of his prisoner trust fund

statement. (Docs. 29, 30). By Order dated July 31, 2019, Plaintiff was

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permitted to proceed in forma pauperis, and the amended complaint was

served on the Defendants named therein. (Doc. 38).

On September 24, 2019, the United States filed a motion to remove

Plaintiff’s in forma pauperis status pursuant to the “three strikes” provision of

the Prison Litigation Reform Act, (PLRA), 28 U.S.C. §1915(g), because he

has at least three civil actions that were dismissed as frivolous, malicious or

for failure to state a claim; and because Gordon was not in “imminent danger”

of physical harm at the time he filed the complaint or sought to proceed in

forma pauperis. (Doc. 48). Specifically, Defendant submits that Gordon is a

prolific prison litigator who is listed as a party in 160 matters on PACER,

including 62 appeals and 83 civil actions in district court. (See Doc. 49-1 at

25, PACER Case Locator Result List). Additionally, the United States notes

that in Gordon v. Hawk-Sawyer, the Eastern District of Texas dismissed

Gordon’s lawsuit, finding his lawsuit asserting access to courts claims was

frivolous and failed to state a claim upon which relief may be granted pursuant

to 28 U.S.C. §1915(d). See Gordon v. Hawk-Sawyer, No. 1:03cv177, slip op.

(E.D. Tx. Mar. 15, 2004); Rep. and Recommendation adopted by slip op.

(E.D. Tx. Sept. 15, 2004); aff’d sub nom Gordon v. Day, 172 Fed. App’x 565

(5th Cir. 2006). (See Doc. 49-1 at 46-69).

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In Gordon v. Lappin, this Court granted the defendants’ motion to

dismiss or, in the alternative, for summary judgment, finding Gordon failed to

state an access to courts claim and failed to carry his burden in establishing

a First Amendment retaliation claim. See Gordon _v. Lappin, No.

3:05-cv-00457, slip op. (M.D. Pa. July 28, 2006); Rep. and Recommendation

adopted by slip op. (M.D. Pa. Sept. 7, 2006). (See Doc. 49-1 at 71 - 80). The

Third Circuit dismissed Gordon's appeal pursuant to 28 U.S.C. §1915(e)(2)(B)

on August 15, 2007, finding that the Gordon’s appeal failed to state a claim

for which relief can be granted. See Gordon v. Lappin, No. 06-4154, slip op.

(3d Cir. Aug. 15, 2017).

Lastly, in Gordon v. Durkin, the Southern District of Ohio dismissed

Gordon’s legal malpractice suit against his criminal defense attorney for failing

to state a claim based on the favorable termination rule. See Gordon v.

Durkin, No. 2:09-cv-00919, slip op. (S.D. Oh. Dec. 4, 2009).

ll. Discussion

Pursuant to 28 U.S.C. §1915(g), a prisoner, who on three or more prior

occasions while incarcerated has filed an action or appeal in federal court that

was dismissed as frivolous, malicious, or for failure to state a claim upon

which relief may be granted, must be denied in forma pauperis status unless

he was in imminent danger of serious physical injury at the time that the

complaint was filed. Abdul-Akbar, 239 F.3d at 310-11. Gordon has had three

prior actions or appeals dismissed as frivolous, malicious, or for failing to state

a viable claim. He does not dispute any of his strikes. Accordingly, he may not

proceed in forma pauperis unless he was in imminent danger of serious

physical injury at the time he filed the instant matter.

Allegations of imminent danger must be evaluated in accordance with

the liberal pleading standard applicable to pro se litigants, although the Court

need not credit “fantastic or delusional” allegations that “rise to the level of

irrational or wholly incredible.” Gibbs v, Cross, 160 F.3d 962, 966-67 (3d Cir.

1998) (quotations omitted). A prisoner need not allege an “existing serious

physical injury” to qualify for the exception to the “three strikes” provision. ld.

at 967. “It is sufficient that the condition [alleged] poses an imminent danger

of serious physical injury.” Id.; see also Abdul-Akbar, 239 F.3d at 315.

Imminent danger must exist “contemporaneously with the bringing of the

action. Someone whose danger has passed cannot reasonably be described

as someone who ‘is’ in danger, nor can that past danger reasonably be

described as ‘imminent.” Abdul-Akbar, 239 F.3d at 313.

In Ball v. Hummel, the Court found that the four months that elapsed

between the plaintiffs alleged harm and the filing of the civil rights complaint

did not amount to imminent harm which would justify avoidance of the

sanctions prescribed by 28 U.S.C. §1915(g). Ball v. Hummel, 2012 WL

3618702 (M.D. Pa. 2012), adopted by, 2012 WL 3624045 (M.D. Pa. 2012),

affirmed, 577 F. App’x 96 (3d Cir. 2014). The Court in Ball further stated that

the inmate could not save her “otherwise inadequate pleadings by alleging in

vague and conclusory terms that she feels constantly under threat of some

sort of harm. Quite the contrary, it is well-settled that: ‘this type of general

assertion: is insufficient to invoke the exception to §1915(g) absent specific

fact allegations of ongoing serious physical injury, or of a pattern of

misconduct evidencing the likelihood of imminent serious physical injury.’”

Ball, 2012 WL 3618702, at *11 (citations omitted).

On March 25, 2019, Inmate Spillman wrote to Plaintiff’s case manager,

S. Hicks, requesting that he “and inmate Gordon would like to be cellies” and

that Gordon would “move from the 3rd range down to the basement.” (Doc. 49-

2 at 6).

On March 26, 2019, Gordon also wrote to S. Hicks, asking if he could

“move to the basement with inmate Gerald Spillman” and that he knows

“Spillman well and [he] need[s] a change of scenery”. (Doc. 49-2 at 6).

On April 2, 2019, with no other precluding factors evident, inmates

Gordon and Spillman were assigned as cellmates. (Doc. 49-2 at 3, 8). About

one week later, Gordon indicated to Case Manager, S. Hicks, that he felt his

life as in danger if he were to continue to cell with inmate Spillman. Id. As a

result, on April 11, 2019, Hicks moved Gordon from the cell he shared with

inmate Spillman. Id. Gordon has not had a cellmate since April 11, 2019. Id.

In response, Plaintiff states that “the actual date that Plaintiff deposited

his initial complaint into the prison mailing system was April 3, 2019" and “with

that beings said, April 3, 2019 was one day after Plaintiff was ‘forced’ into a

cell with inmate Gerald Spillman and, six days after, Plaintiff was sexually

attacked, assaulted and raped by Gerald Spillman.” (Doc. 52 at 2).

Even if the Court considers April 3, 2019 as the file date for Plaintiff’s

original complaint, Plaintiff fails to show he was imminent danger on that date.

Gordon claims he was sexually assaulted by his cellmate, Spillman, on April

9, 2019, six days after April 3, 2019. Thus, in the present matter, Gordon’s

claim of imminent danger fails. The alleged sexual assault occurred prior to

the filing of the complaint. The imminent danger exception is to provide a

“safety valve for the “three strikes” rule to prevent impending harms, not those

harms that had already occurred.” Abdul-Akbar, 239 F.3d at 315. Gordon has

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failed to meet the imminent danger exception to 28 U.S.C. §1915(g)’s three

strikes rule, and thus failed to make the requisite showing to avoid the

revocation of his in forma pauperis status. Accordingly, Defendant’s motion

to revoke Plaintiffs leave to proceed in forma pauperis will be granted. See

Brown v. City of Philadelphia, 331 F. App’x 898 (3d Cir. 2009) (finding that the

inmate demonstrated a pattern of abusing judicial process by repeatedly filing

frivolous actions, and affirming the district court's order dismissing the

complaint pursuant to §1915(g)).

If Gordon wishes to pursue the claims in this action, he must pay the

filing fee in full. Accordingly, Gordon will be required to pay the full filing fee

of $400.00. Failure to pay the fee within the time stated will result in dismissal

of the complaint.

A separate Order will be issued.

s/ Malachy E. Mannion

MALACHY E. MANNION

United States District Judge

Dated: November 8, 2019

19-626-01

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