OWL FEATHER-GORBEY v. FEDERAL BUREAU OF PRISONS

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

MICHAEL S. OWL FEATHER-GORBEY, : Civil No. 3:20-cv-867

Plaintiff (Judge Mariani)

v. .

FEDERAL BUREAU OF PRISONS, et al.,

Defendants

MEMORANDUM

Plaintiff, Michael S. Owl Feather-Gorbey (“Gorbey’), a federal inmate incarcerated at

the United States Penitentiary, Lewisburg, Pennsylvania (“USP-Lewisburg’), commenced

this Bivens’, 28 U.S.C. § 1331, action in the United States District Court for the District of

Columbia. (Doc. 1). On May 27, 2020, the action was transferred to the United States

District Court for the Middle District of Pennsylvania. (Doc. 5). Gorbey has submitted an

application (Doc. 15) to proceed in forma pauperis. Gorbey is a prolific filer who is subject

to the three-strikes provision set forth in 28 U.S.C. § 1915(g). Accordingly, he may not

proceed in forma pauperis unless he was in imminent danger of serious physical injury at

the time he filed his complaint. Abdul-Akbar v. McKelvie, 239 F.3d 307, 310-11 (3d Cir.

+ Bivens v. Six Unknown Named Agents of the Fed. Bureau of Narcotics, 403 U.S. 388 (1971).

Bivens stands for the proposition that “a citizen suffering a compensable injury to a constitutionally

protected interest could invoke the general federal-question jurisdiction of the district courts to obtain an

damages against the responsible federal official.” Butz v. Economou, 438 U.S. 478,

2001) (en banc). In support of his allegations of imminent danger, Gorbey filed a motion

(Doc. 19) to present new facts, along with a supporting brief (Doc. 20), and a statement of

facts (Doc. 21). The Court will grant Gorbey’s motion (Doc. 19) to present new facts and

consider the newly asserted claims of imminent danger (Doc. 21).

After review of the complaint and statement of facts, the Court finds that Gorbey has

not sufficiently alleged or shown that he is in imminent danger of serious bodily harm.

Accordingly, the application to proceed in forma pauperis will be denied, and this action will

be stayed pending receipt of the full filing fee.

I. Allegations of the Complaint and Allegations of Imminent Danger

In the complaint, Gorbey alleges that the Bureau of Prisons’ (“BOP”) inmate

discipline process and administrative remedy program are unconstitutional, that Defendants

interfered with his access to the courts, “den|ied] him the right to selff-]defense”, that he is

subjected to “subhuman conditions” at USP-Lewisburg, and that the BOP drug tests are

unconstitutional. (Doc. 1, pp. 1-20). Gorbey also alleges that he did not receive proper

medical treatment for his glaucoma, he is assigned to a top bunk despite suffering from

chronic injuries, he is housed in a small cell without a duress button, and he is exposed to

lead paint and excessive lighting. (/d. at pp. 18-19).

In his statement of facts, Gorbey asserts that he is in imminent danger of serious

physical injury because BOP officials abused the inmate discipline process and failed to

protect him from assault, and thwarted his efforts to exhaust his administrative remedies.

(Doc. 21). Gorbey further asserts that BOP staff improperly denied his administrative

remedy wherein he alleged that staff members attempted to murder him by exposing him to

COVID-19. (/d. at p. 4).

For relief, Gorbey seeks “$9,500,00.00 cash”, revision of the BOP inmate discipline

process, the administrative remedy program, and the inmate legal mail procedures, he

requests that the BOP “keep [him] safe” and allow him to defend himself, that all staff follow

BOP policy and procedure, and he seeks restoration of his good time credits. (Doc. 1, pp.

21-22).

Il. 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. Gorbey has had

more than three prior actions or appeals dismissed as frivolous, malicious, or for failing to

state a viable claim. See Gorbey v. The Federal Bureau of Alcohol, et al., Civil No. 5:11-cv-

126 (N.D. W. Va. March 14, 2012) at (Doc. 26) (noting that Gorbey has filed eleven cases

that have been dismissed as frivolous or for failure to state a claim upon which relief can be

granted); Gorbey v. Federal Bureau of Prisons, et al., Civil No. 5:10-cv-309 (M.D. Fla. 2010)

at (Doc. 4) (imposing three strikes bar and citing previous strikes incurred by Gorbey);

Gorbey v. District of Columbia, et al., Civil No. 2:09-cv-151 (S.D. Ind. 2009) at (Doc. 2)

(noting that Gorbey is barred from proceeding in forma pauperis due to his three strike

status under 28 U.S.C. § 1915(g)). 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. /d. at 967. “It is sufficient that the condition [alleged] poses an imminent danger

of serious physical injury.” /d.; 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 the present matter, Gorbey’s claims of imminent danger fail. He asserts that he is

in imminent danger of serious physical injury because he did not receive proper medical

treatment for his glaucoma, he is assigned to a top bunk despite suffering from chronic

injuries, he is housed in a small cell without a duress button, and he is exposed to lead paint

and excessive lighting. (Doc. 1, pp. 18-19). He also generally asserts that his placement in

BOP custody is a threat to his safety, that BOP officials abused the inmate discipline

process, failed to protect him from assault, and thwarted his efforts to exhaust his

administrative remedies. (Doc. 1, p. 18, Doc. 21). The Court finds that these allegations

simply do not rise to the level of a serious physical injury, or threat of serious physical injury.

28 U.S.C. § 1915(g). Gorbey’s claim that his mere placement in a high security facility may

subject him to physical injury is vague and too speculative to be considered imminent. See

Ball v. Famiglio, 726 F.3d 448, 468 (3d Cir. 2013), abrogated on other grounds by, Coleman

v. Tollefson, 135 S.Ct. 1759, 1763 (2015), (“[C]ourts . . . deny leave to proceed IFP when a

prisoner's claims of imminent danger are conclusory or ridiculous.”) (citation omitted). An

inmate claiming that he is in imminent danger of serious physical harm must “make specific

[and] credible allegations to that effect.” Ball, 726 F.3d at 470 (citation omitted).

Upon review of the filings in the instant action, the Court determines that Gorbey was

not under imminent danger of serious physical injury when he signed and filed his

complaint. Gorbey has 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 allow him to

proceed in forma pauperis. 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 Gorbey wishes to pursue the claims in this action, he

must pay the filing fee in full. Failure to pay the full fee will result in dismissal of the

complaint.

Ill. Conclusion

The Court will deny Gorbey’s application (Doc. 15) to proceed in forma pauperis and

direct him to submit the requisite filing fee. A separate Order shall issue.

ae

PAN, Law

Robert D. Mariani

ie United States District Judge

Dated: October 7s , 2020