The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
CHIEF MICHAEL S. OWL : CIVIL ACTION NO. 1:20-CV-2011
FEATHER-GORBEY, :
: (Judge Conner)
Plaintiff :
:
v. :
:
LT. BLACK, et al., :
:
Defendants :
MEMORANDUM
Plaintiff Chief Michael S. Owl Feather-Gorbey (“Gorbey”), a federal inmate
confined at the United States Penitentiary, Lewisburg, Pennsylvania (“USP-
Lewisburg”), initiated this action pursuant to Bivens1, 28 U.S.C. § 1331, and the
Federal Tort Claims Act (“FTCA”)2. (Doc. 1). Named as defendants are several
USP-Lewisburg supervisory and correctional staff members, and the United States
of America. Gorbey seeks to proceed in forma pauperis. (Doc. 6). The complaint is
presently before the court for screening.
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).
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.
See Abdul-Akbar v. McKelvie, 239 F.3d 307, 310-11 (3d Cir. 2001) (en banc). For the
reasons set forth below, the court will deny the application to proceed in forma
pauperis, and this action will be stayed pending receipt of the full filing fee.
I. Allegations of the Complaint and Allegations of Imminent Danger
Gorbey alleges that defendant Black, at the request of defendants
Spaulding, Konkle, and Shirk, as well as various United States District Court
judges and United States Circuit Court judges, demanded that he withdraw a
pending administrative remedy allegedly related to his lower-bunk bed assignment.
(Doc. 1 at 5). Gorbey further alleges that defendants have threatened him because
he has refused to withdraw his pending administrative remedy. According to the
complaint, defendants physically restrained Gorbey and demanded that he
withdraw his administrative remedy. Defendants allegedly threatened Gorbey that
if he failed to withdraw his administrative remedy request, he would receive a new,
abusive cell mate and that his complaints would go nowhere. (Id. at 5-6).
For relief, Gorbey seeks monetary compensation and immediate release from
custody. (Doc. 1, at 8).
II. Discussion
The Prison Litigation Reform Act of 1996 (PLRA”), in an effort to halt the
filing of frivolous inmate litigation, enacted the “three strikes” provision. 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 the prisoner was in imminent
danger of serious physical injury at the time that the complaint was filed. See
Abdul-Akbar, 239 F.3d at 310-11.
There is no question that 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 Action 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 Action 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)); Gorbey v. Federal
Bureau of Prisons, et al., Civil Action No. 5:10-cv-309 (M.D. Fla. 2010) at (Doc. 4)
(imposing three strikes bar and citing previous strikes incurred by Gorbey).
Because Gorbey is subject to the three strikes provision in 28 U.S.C. § 1915(g), he
may not proceed in forma pauperis unless he was in imminent danger of serious
physical injury at the time he filed the instant action.
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. Id. 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.
When evaluating an allegation of imminent danger of serious physical injury, the
court must determine whether the inmate has drawn “an adequate nexus between
the claims [s]he seeks to pursue and the ‘imminent danger’ [s]he alleges.” Ball
v. Hummel, 577 F. App’x 96, at n.1 (3d Cir. 2014) (nonprecedential) (citing Pettus
v. Morgenthau, 554 F.3d 293, 296 (2d Cir. 2009)).
In the present matter, Gorbey’s claims of imminent danger fail to meet that
standard. Gorbey does not challenge the fact that he has three strikes. Rather, he
states that he is under imminent danger of serious physical injury because staff
members placed him in a cell with occupied beds, ignored his requests for
assistance and, ultimately—after placing him in physical restraints—threatened
him with a new, abusive cellmate. Gorbey also alleges that staff members
threatened to “deal with [his] property” if he failed to withdraw his administrative
complaint. Doc. 1 at 5-6. The court finds that Gorbey has failed to allege any
imminent danger of serious physical injury. Gorbey’s vague and generalized
allegations of past exposure to inmates with COVID-19 and failure-to-protect, (see
Doc. 2 at 2-3), and current threats of a new, more violent cellmate, (see Doc. 1 at 6),
are insufficient to demonstrate imminent danger. See Ball v. Famiglio, 726 F.3d
448, 470 (3d Cir. 2013), abrogated on other grounds by Coleman v. Tollefson, 575
U.S. 532 (2015).
Upon thorough review of the filings in this action, the court concludes that
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. If Gorbey wishes to pursue the claims in this action, he
must pay the filing fee in full. Failure to pay the filing fee will result in dismissal of
the complaint without prejudice. See Brown v. City of Philadelphia, 331 F. App’x
898 (3d Cir. 2009) (nonprecedential) (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)).
III. Conclusion
The court will deny Gorbey’s application to proceed in forma pauperis and
direct him to submit the requisite filing fee. An appropriate order shall issue.
/S/ CHRISTOPHER C. CONNER
Christopher C. Conner
United States District Judge
Middle District of Pennsylvania
Dated: January 5, 2021