Gorbey v. King

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

MICHAEL S. OWL FEATHER-GORBEY, : Civil No. 3:21-cv-16

Plaintiff (Judge Mariani)

V. :

A. KING, et al.,

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’).2 (Doc. 1). Gorbey seeks to proceed in forma pauperis. (Docs. 2, 7).

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

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).

danger of serious physical injury 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 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 Complaint and Allegations of Imminent Danger

In the complaint, Gorbey alleges that he was assaulted in retaliation for filing

complaints against prison staff. (Doc. 1, pp. 2-3). He further alleges that the Defendants

conspired to coverup the physical assaults. (/d.).

Gorbey contends that his due process rights were violated in the context of a

disciplinary hearing held at USP-Lewisburg. (/d. at pp. 3-4, 6-9). He next alleges that his

administrative remedies were improperly rejected. (/d. at pp. 4-5, 9-11, 14-15).

Gorbey avers that prison staff at USP-Lewisburg tampered with his legal mail and

hindered his access to the courts, denied him funds to purchase items from the

commissary, and impeded his access to the administrative remedy process. (/d. at pp. 12-

13). For relief, Gorbey seeks $250,000,00.00, as well as injunctive relief. (/d. at p. 19).

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

was assaulted, he is at risk of further assaults, and was denied access to the courts. (Doc.

2, pp. 4-5).

ll. 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. /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. 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 appear to challenge the fact that he has three strikes. Rather, he states

that he was assaulted, he is at risk of further assaults, and was denied access to the courts.

(Doc. 2, pp. 4-5). The Court finds that these claims do not meet the imminent danger of

serious physical injury standard. See Abdul-Akbar, 239 F.3d at 315 (“Imminent’ dangers

are those dangers which are about to occur at any moment or are impending.”). Gorbey’s

allegation that he was denied access to the courts does not suggest imminent harm.

Similarly, Gorbey’s assertion that he suffered past assaults does not suggest imminent

harm. Additionally, stating that he could suffer additional assaults in the future is purely

speculative.

Moreover, the Court observes that Gorbey has previously raised the identical

imminent danger claims, and that he has been repeatedly rebuffed by the courts, which

have found that these allegations do not show imminent danger of serious of serious injury.

See, e.g., Feather-Gorbey v. Gass, et al., Civil Action No. 3:20-cv-1050, 2020 WL 6107049,

at *2 (M.D. Pa. Oct. 15, 2020) (finding, inter alia, that Gorbey failed to sufficiently show an

imminent threat for purposes of the PLRA strike provision with respect to claims that he was

denied access to the administrative remedy program); Ow! Feather-Gorbey v. United

States, et al., Civil Action No. 1:20-cv-2401, 2020 WL 6144568, at *1 (D.D.C. Sept. 29,

2020) (holding that Gorbey’s allegations of judicial bias did not qualify as imminent danger

of serious physical harm); Gorbey v. Mubarek, et al., Civil Action No. 1:19-cv-220, 2019 WL

5593284, at *3-6 (D. Md. Oct. 30, 2019) (finding, inter alia, that Gorbey’s allegations related

to his arm injury, front-cuffing, medical treatment, and staff-encouraged violence did not

create an imminent danger to his safety); Gorbey v. Dunbar, et al., Civil Action No. 1:18-cv-

2754, 2019 WL 5339607, at *7 (D. Md. April 24, 2019) (holding, inter alia, that Gorbey failed

to establish that he was in imminent danger of harm based on claims that he failed to

receive adequate medical treatment for past injuries), aff'd, 787 F. App’x 824 (4th Cir.

2019). Given that Gorbey’s 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. lf 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) (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)).

Ill. 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.

GAY ier LV nin

Robert D. Mariani

United States District Judge

Dated: May 4 2021