Owl Feather-Gorbey v. Olson

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

MICHAEL S. OWL FEATHER-GORBEY, : Civil No. 3:20-cv-1713

Plaintiff (Judge Mariani)

V. :

DR. JOANNA MARIE OLSON, et ai.,

Defendants

MEMORANDUM

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

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

instant action pursuant to Bivens', 28 U.S.C. § 1331, and the Federal Tort Claims Act

("FTCA’)2. (Doc. 1). At the same time he filed the complaint, Gorbey filed a motion (Doc. 2)

for leave 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

1 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

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

504 (1978).

2 The FTCA vests exclusive jurisdiction in district courts for claims against the United States for

money damages involving “injury or loss of property, or personal injury or death caused by the negligent or

wrongful act or omission of any employee of the Government while acting within the scope of his office or

employment, under circumstances where the United States, if a private person, would be liable to the

claimant in accordance with the law of the place where the act or omission occurred.” 28 U.S.C. §

1346(b)(1).

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. 2001) (en banc).

Review of the complaint has been undertaken and, as set forth in detail below,

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

On July 7, 2020, Gorbey underwent laser surgery for glaucoma in his left eye at the

Geisinger Eye Institute in Danville, Pennsylvania. (Doc. 1, p. 5). Gorbey alleges that he

signed the consent form before surgery without being able to read the entire consent form.

(/d.). He further avers that he requested a copy of the consent form from the Geisinger Eye

Institute, but has not yet received the form. (/d.).

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

(Doc. 2) (noting that Gorbey was barred from proceeding in forma pauperis due to his three

strike status under 28 U.S.C. § 1915(g)); 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). 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.” 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 the present matter, Gorbey has failed to set forth any claims of imminent danger.

Rather, Gorbey asserts that he was coerced into signing the pre-surgery consent form.

(Doc. 2-1). 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)). The Court finds that Gorbey was not under imminent

danger of serious physical injury when he initiated this action. If Gorbey wishes to pursue

the claims in this action, he must pay the filing fee in full. Failure to pay the full fee within

the time stated will result in dismissal of the complaint.

Conclusion

The Court will deny Gorbey’s application to proceed in forma pauperis and direct him

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

GAs

Robert D> Mariani

. United States District Judge

Dated: November 2020