The opinion
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF PENNSYLVANIA
MICHAEL S. OWL FEATHER-
GORBEY, #83405-013,
CIVIL ACTION NO. 3:20-ev-01513
Plaintiff,
(SAPORITO, M.J.)
Vv.
WARDEN SPAULDING, et al., LK
Defendants. Pep cn 3 !
PERG
MEMORANDUM TE
This matter comes before the Court on a motion by the plaintiff,
Michael S. Owl Feather-Gorbey, for leave to proceed in forma pauperis
(“IFP”) in this action. (Doc. 2). For the reasons stated herein, we will deny
the plaintiffs motion and order him to pay the applicable filing and
administrative fees in full or face summary dismissal of this action.
I. BACKGROUND
On August 24, 2020, the Court received a pro se complaint signed
and dated by the plaintiff on August 3, 2020. (Doc. 1.) The complaint
named several USP Lewisburg supervisory, correctional, and medical
staff members as defendants. It alleges violations of the plaintiffs federal
constitutional rights, presumably actionable under Bivens v. Six ~
Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388
(1971). Together with the complaint, the plaintiff submitted a motion for
leave to proceed IFP in this action. (Doc. 2.)
This plaintiff is subject to the “three strikes rule” set forth in 28
U.S.C. § 1915(g) because he has previously brought three or more federal
actions or appeals that were dismissed as frivolous, as malicious, or for
failure to state a claim. See Owl Feather-Gorbey v. Spaulding, Civil No.
3:20-cv-1457, 2020 WL 6787493, at *1 (M.D. Pa. Nov. 17, 2020) (““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.” Id. (citing Abdul-Akbar v. McKelvie, 239
F.3d 307, 310-11 (8d Cir. 2001) (en banc)).
II. DISCUSSION
The plaintiff is barred from proceeding without prepayment of fees
unless he was “under imminent danger of serious physical injury.” See 28
U.S.C. § 1915(g). “The Act provides a limited exception to [the three
strikes] rule when a prisoner is in ‘imminent danger of serious physical
injury, which serves as a ‘safety valve’ to ensure that a prisoner is not
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subject to serious injury due to his inability to pay a filing fee.” Brown v.
Lyons, 977 F. Supp. 2d 475, 481 (E.D. Pa. 2013). 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. Gibbs v. Cross, 160 F.3d 962, 966—
67 (8d Cir. 1998). Moreover, “a prisoner claiming that she is in imminent
danger of serious physical harm must make specific and credible
allegations to that effect.” Ball v. Famiglio, 726 F.3d 448, 470 (3d Cir.
2013) Gnternal quotation marks and alterations omitted), abrogated on
other grounds by Coleman v. Tollefson, 135 S. Ct. 1759 (2015). “When
considering whether imminent danger of physical injury has been
alleged, courts may reject ‘vague’ or ‘conclusory’ allegations as
insufficient to provide a basis for IFP status.” Brown, 977 F. Supp. 2d at
483 (citing Famiglio, 726 F.3d at 468).
“TA] prisoner may invoke the ‘imminent danger’ exception only to
seek relief from a danger which is ‘imminent’ at the time the complaint |
is filed.” Abdul-Akbar, 239 F.3d at 312. “Imminent? dangers are those
dangers which are about to occur at any moment or are impending.” Id.
at 315. “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.” Id. at 313. Moreover, “even if an
alleged harm may in fact be ‘impending,’ it does not satisfy this exception
if it does not threaten to cause ‘serious physical injury.” Brown, 977 □□
Supp. 2d at 483 (citing 28 U.S.C. § 1915(g)).
Reviewing the complaint and other submissions, it is clear that no
imminent danger of serious physical injury has been credibly alleged. The
complaint alleges that, on July 31, 2020, the plaintiff was tested and
found to be positive for COVID-19.1 He was then transferred to a
quarantined area, where he was placed in a cell with another inmate who
had tested positive for COVID-19. The complaint alleges that, over the
next three days,? the plaintiff had been denied showers and had not been
evaluated by medical staff.
We find that the plaintiff has failed to allege any imminent danger
of serious physical injury. The suggestion that, despite his own positive
COVID-19 test, Gorbey might not be infected because testing swabs were
1 The complaint also contains allegations regarding a prior
cellmate, but these allegations are not relevant to any imminent danger
analysis, as the plaintiff had since been transferred to a new cell.
2 The complaint is dated August 3, 2020.
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handled improperly is rank speculation. Further, the purportedly serious
physical injury alleged is speculative at best: the complaint does not □
allege that the plaintiff has suffered any symptoms of COVID-19, nor
that he is an older adult or suffers from any pre-existing health condition .
that would make him more vulnerable to the health risks posed by
COVID-19. Moreover, the danger alleged by the plaintiff is entirely in the
past, and thus cannot be said to be imminent. The purportedly imminent
danger alleged is exposure to a COVID-positive cellmate, which has
already occurred, and only occurred after the plaintiff himself tested
positive for COVID-19.
III. CONCLUSION
Based on the foregoing, the plaintiffs motion for leave to proceed in
forma pauperis (Doc. 2) shall be denied, and the plaintiff shall be ordered
to pay the applicable filing fee in full within thirty days of the date of the
accompanying Order or dismissal of this action will be recommended.
An appropriate Order follows.
Dated: December i , 2020
GOSEPH F. SAPQRITO,
United States Magistrate Judge