Gorbey v. Spaulding

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

MICHAEL S. OWL FEATHER-GORBEY, : Civil No. 3:20-cv-1457

Plaintiff (Judge Mariani)

V. :

S. SPAULDING, WARDEN, ef al.,

Defendants

MEMORANDUM

Plaintiff, Michael Steven 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”)?. (Doc. 1). He subsequently filed motions (Docs. 7, 9) for leave to

amend the complaint. Gorbey seeks to proceed in forma pauperis. (Docs. 10, 15). 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

' 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).

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 and amendments 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 applications 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 and amendments, Gorbey alleges that Defendants thwarted his

efforts to exhaust administrative remedies and denied his requests for administrative relief.

(Doc. 1, pp. 2-3; see also Docs. 7, 8, 9). He also alleges that he is assigned to a top bunk,

he failed to receive proper medical treatment for his glaucoma, he is not provided adequate

services to practice his religion, and he was denied razors and the ability to shave. (Doc. 1,

pp. 3-7). Additionally, Gorbey alleges that he is in imminent danger of serious physical

injury because BOP staff members attempted to murder him by exposing him to the

coronavirus disease (COVID-19), that staff members did not follow safety protocols when

administering COVID-19 tests, and that he was denied showers and the ability to wash his

clothes and bed linens. (Doc. 9, pp. 2-7).

For relief, Gorbey seeks monetary compensation, immediate medical treatment at an

outside medical facility, transfer to a lower security federal institution, and the termination of

Warden Spaulding. (Doc. 1, p. 9; Doc. 9, p. 8).

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.” /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 to meet that standard.

He asserts that he is in imminent danger of serious physical injury because he is assigned

to a top bunk, he failed to receive proper medical treatment for his glaucoma, he is not

provided adequate services to practice his religion, he was denied razors and the

opportunity to shave, BOP officials thwarted his efforts to exhaust his administrative

remedies and exposed him to COVID-19. (Doc. 1, pp. 3-7; Doc. 9, p. 2-7). 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 claims are 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 thorough review of the filings in the instant action, the Court finds 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.

ll. Conclusion

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

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

□

d Y We

Robert D. Mariani

United States District Judge

Dated: November Lt. 2020