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)
How later courts described this case
- 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)
Written by the judges who cited it.
The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
MICHAEL S. OWL FEATHER-GORBEY, : Civil No. 3:20-cv-2378
Piaintiff + (Judge Mariani)
V. FILED
HOPE L. SWANN, et al., May
2024
Defendants
MEMORANDUM □□□□
Plaintiff, Michael S. Owl Feather-Gorbey (“Gorbey”), a federal inmate formerly
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”)*, and subsequently filed an amended complaint. (Docs. 1, 5). Gorbey
seeks to proceed in forma pauperis. (Docs. 2, 8, 11). 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
‘Bivens v. Six Unknown Named Agents of the Fed. Bureau of Narcotics, 403 U.S. 388 (1977).
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){‘).
at the time he filed this action. Abdul-Akbar v. McKelvie, 239 F.3d 307, 310-11 (3d Cir.
2001) (en banc).
Review of the amended 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 applications to proceed in forma pauperis will be denied, and
this action will be stayed pending receipt of the full filing fee. .
Allegations of the Amended Complaint and Allegations of Imminent Danger
in the amended complaint, Gorbey alleges that the Defendants are “impeding [his] F.
BOP remedy and tort claim access.” (Doc. 1, p. 6). He claims that various United States
Circuit Court Judges and United States District Court Judges are interfering with his access
to the courts. (/d. at p. 9). Gorbey further alleges that his administrative tort claims have
been improperly rejected. (/d. at p. 22). For relief, Gorbey seeks $250,000,00.00, as well
as injunctive relief. (/d. at pp. 7, 33).
Gorbey asserts that he is in imminent danger of serious physical injury because he
was assaulted and threatened by fellow inmates, he was deliberately exposed to the
coronavirus disease 2019 (COVID-19), he was denied proper medication for his glaucoma,
and he suffered injuries after falling from his top bunk. (/d. at pp. 23-33).
il, 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. 5:114-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. /d. at 967. “lt 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. 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,
(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 appear to challenge the fact that he has three strikes. Rather, he states
that he was assaulted and threatened by inmates, he was deliberately exposed to COVID-
19, he was denied proper medication for his glaucoma, and he suffered injuries after falling
from his top bunk. (Doc. 1, p. 7). However, the allegations of the amended complaint relate
to abuse of power, judicial misconduct, denial of access to the courts, and improper
rejection of his tort claims. These claims lack any apparent connection to the imminent
dangers alleged by Gorbey. Moreover, Gorbey has previously raised these identical
imminent danger claims, and he has been repeatedly rebuffed by the courts, which have
found that his allegations do not show imminent danger of serious injury. See, e.g.,
Feather-Gorbey v. Warden Spaulding, et al., Civil Action No. 1:20-cv-1513 (M.D. Pa.):
Gorbey v. S. Spaulding, Warden, et al., Civil Action No. 3:20-cv-1457 (M.D. Pa.); Gorbey v.
Dr. Muberik, et al., Civil Action No. 1:19-cv-220 (D. Md.}; Gorbey v. Dunbar, et al., Civil
Action No. 1:18-cv-2754 (D. Md.). Given that Gorbey’s amended complaint merely repeats
his previously rejected claims of imminent danger, it is difficult to see how these claims
demonstrate an imminent danger of serious bodily harm under 28 U.S.C. § 1915(g).
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 amended complaint without
prejudice. See Brown vy. 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)).
I. 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.
Robert D. Mariani
United States District Judge
Dated: April $6 , 2021