overruling Gibbs v. Roman, 116 F.3d 83, 86 (3d Cir. 1997)
How later courts described this case
- overruling Gibbs v. Roman, 116 F.3d 83, 86 (3d Cir. 1997)
Written by the judges who cited it.
The opinion
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF PENNSYLVANIA
MILTON WASHINGTON, et al., :
Plaintiffs : CIVIL ACTION NO. 3:20-0122
v. : (JUDGE MANNION)
GOVERNOR TOM WOLFE, et al., :
Defendants :
MEMORANDUM
I. Background
Plaintiffs, Milton Washington, Issalim Permenter, Terry Patterson and
Hassan Grimes, all inmates confined in the State Correctional Institution,
Dallas (“SCI-Dallas”), Pennsylvania at the time of filing the above captioned
case, bring this action pursuant to 42 U.S.C. §1997.1 The named Defendants
are Governor Tom Wolf, PA Department of Corrections, DOC Secretary John
Wetzel and SCI-Dallas Superintendent Kevin Ransom. Id.
1 42 U.S.C. §1997 sets forth definitions under the Civil Rights of
Institutional Persons Act (“CRIPA”). Subsection 1997(a) authorizes the
Attorney General to bring suit for equitable relief to ensure the “minimum
corrective measures” necessary to remediate “egregious or flagrant
conditions which deprive [institutional residents] of any [federally protected]
rights, privileges, or immunities,” provided the Attorney General finds that
such deprivations occur “pursuant to a pattern or practice of resistance.” 42
U.S.C. §1997a. However, it is solely the province of the Attorney General to
bring suit under CRIPA. Messier v. Southbury Training School, 916 F. Supp.
Plaintiffs’ complaint, which is signed by only Plaintiffs Milton
Washington and Terry Patterson, contains factual allegations that pertain
only to Plaintiff Washington. Specifically, Washington alleges that as of
August 7, 2019, he was incarcerated at SCI-Phoenix where he refused to
take a cellmate. Id. He voluntarily signed himself into administrative custody
at that facility and was granted “self-confinement” on October 24, 2019. Id.
Following Program Committee Review, Plaintiff Washington was transferred
to SCI-Dallas where he continued his refusal to take a cellmate. Id.
Plaintiff challenges the physical design and layout of SCI-Dallas,
claiming that “the cell design here at SCI-Dallas was designed to house or
hold one single inmate, it was not designed for double-celling two inmates.”
Id. Thus, Plaintiff Washington requests that Attorney General Shapiro be
“required to represent the plaintiff in this suit filed against SCI-Dallas on
behalf of the above-named plaintiff’s (sic) in this case matter.” Id. Plaintiff
Washington further requests an injunction “barring correctional officers here
as SCI-Dallas from housing more than one inmate in a cell accept [sic] for
temporary measures.” Id. Finally, Plaintiff Washington seeks the court to
order his transfer back to “his original state institution SCI-Phoenix” and
Plaintiffs Permenter, Patterson and Grimes seek transfer to “safe” state
correctional institutions. Id.
By Order dated May 6, 2020, Plaintiffs’ motions to proceed in forma
pauperis were granted and service of process was issued. (Doc. 17). On May
15, 2020, this Court’s May 6, 2020 Order addressed to Plaintiff Hassan
Grimes was returned as “refused”, “unable to forward,” indicating that Grimes
had been released. (Doc. 19).
On July 6, 2020, Defendants filed a motion to dismiss Plaintiffs’
complaint, and to reconsider this Court’s May 6, 2020 Order granting in forma
pauperis status to Plaintiff Washington. (Doc. 27). On July 13, 2020, prior to
Defendants’ brief in support being filed, Plaintiff Washington filed a brief in
opposition to Defendants’ motion to dismiss. (Doc. 28). On August 3, 2020,
Defendants filed a brief in support of their motion to dismiss. (Doc. 31).
On September 24, 2020, Plaintiff Patterson, filed a request to be
removed as a Plaintiff in the above captioned action. (Doc. 35).
For the reasons set forth below, the Court will grant Defendants’ motion
to dismiss Plaintiffs Permenter and Grimes from the action, for failing to sign
the complaint in violation of Fed. R. Civ. P. 11, and to withdraw in forma
pauperis status from Plaintiff Washington, because he has had three, or
more, previous lawsuits which constitute “three strikes” within the meaning
of 28 U.S.C. §1915(g). The Court will grant Plaintiff Patterson’s request to be
removed from the above captioned action. The Court will deny Plaintiff
Washington’s motion for leave to proceed in forma pauperis and dismiss the
action without prejudice to Plaintiff Washington reopening it by paying the full
statutory and administrative filing fee.
II. Discussion
A. Rule 11
Rule 11 of the Federal Rules of Civil Procedure requires that “[e]very
pleading . . . must be signed by . . . a party personally if the party is
unrepresented.” Fed. R. Civ. P. 11(a). All four Plaintiffs are proceeding pro
se and are thus required to each sign the complaint. A review of the
complaint reveals that only Plaintiffs Washington and Patterson signed the
complaint. Thus, Plaintiffs Permenter and Grimes2 should be dismissed as
Plaintiffs for failure to sign the complaint as required by Fed. R. Civ. P. 11(a).
B. Motion for Reconsideration
A motion for reconsideration is a device of limited utility, which may
“not be used as a means to reargue matters already argued and disposed of
or as an attempt to relitigate a point of disagreement between the Court and
2 In addition to Plaintiff Grimes’ failure to sign the complaint, in violation
of Rule 11, Grimes should be dismissed from the above captioned action for
failure to comply with his obligation to inform the Court of an address change.
(See Doc. 4).
the litigant.” Ogden v. Keystone Residence, 226 F. Supp. 2d 588, 606 (M.D.
Pa. 2002) (citations omitted); see also Baker v. Astrue, Civ. No. 07-4560,
2008 WL 4922015, at *1 (E.D. Pa. Nov. 17, 2008). Rather, a court may alter
or amend its judgment only upon a showing from the movant of one of the
following: “(1) an intervening change in the controlling law; (2) the availability
of new evidence ... or (3) the need to correct a clear error of law or fact or to
prevent manifest injustice.” Max’s Seafood Cafe v. Quinteros, 176 F.3d 669,
677 (3d Cir. 1999) (citing North River Ins. Co. v. CIGNA Reinsurance Co.,
52 F.3d 1194, 1218 (3d Cir. 1995)). A motion for reconsideration is
appropriate when a court has “patently misunderstood a party or has made
a decision outside the adversarial issues presented to the [c]ourt by the
parties or has made an error not of reasoning but of apprehension.”
Rohrbach v. AT&T Nassau Metals Corp., 902 F. Supp. 523, 527 (M.D. Pa.
1995) (quoting Above the Belt, Inc. v. Mel Bohannan Roofing, Inc., 99 F.R.D.
99, 101 (E.D. Va. 1983)), vacated in part on other grounds on
reconsideration, 915 F. Supp. 712 (M.D. Pa. 1996).
In support of their motion for reconsideration, Defendants submit
docket sheets referencing four civil actions, filed by Plaintiff Washington, that
were dismissed as frivolous. (Doc. 31-1). This new evidence demonstrates
the need for this Court to correct a clear error of fact when it granted Plaintiff
Washington’s in forma pauperis status to proceed with the above captioned
action.
Pursuant to 28 U.S.C. §1915(g), a prisoner who has filed three civil
actions that were dismissed on the basis that they were frivolous, malicious,
or failed to state a claim upon which relief may be granted may not proceed
in forma pauperis “unless the prisoner is in imminent danger of serious
physical injury” at the time the complaint was filed. Ball v. Famiglio, 726 F.3d
448, 467 (3d Cir. 2013), abrogated in part by Coleman v. Tollefson, 575 U.S.
532 (2015). Prisoners with three strikes who cannot satisfy the imminent
danger exception are not barred from filing additional federal actions, rather
they are denied the privilege of proceeding in forma pauperis and must pay
the requisite filing fee in full prior to commencing a new action. Abdul-Akbar
v. McKelvie, 239 F.3d 307, 314 (3d Cir. 2001). Thus, when denying or
revoking a prisoner’s in forma pauperis status because of his or her accrual
of three strikes, the court must determine what strikes the prisoner accrued
prior to initiating the action immediately before the court. Gibbs v. Ryan, 160
F.3d 160, 162 (3d Cir. 1998). If determined to have three qualifying strikes
to their name, then the court must consider whether the prisoner qualifies for
the “imminent danger” exception.
When deciding whether a prisoner meets the “imminent danger”
requirement, a court must examine the situation faced by the prisoner at the
time of the filing of the complaint, and a showing of danger in the past is
insufficient to demonstrate “imminent danger.” Abdul–Akbar, 239 F.3d at
312. 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).
The Court takes judicial notice of the fact that Plaintiff has at least
“three strikes” within the meaning of 28 U.S.C. §1915(g).3 (See Doc. 31-1).
Although Plaintiff has had at least three previous “strikes,” he may be
entitled to proceed in forma pauperis under the “imminent danger” exception
to the three strikes rule. To satisfy the imminent danger exception, Plaintiff
must allege facts showing that he was in imminent danger at the time the
3 The three strike rule announced by the United States Court of
Appeals for the Third Circuit in Byrd v. Shannon, 715 F.3d 117, 126 (3d Cir.
2013) is that “a strike under §1915(g) will accrue only if the entire action or
appeal is (1) dismissed explicitly because it is ‘frivolous, malicious, or fails to
state a claim’ or (2) dismissed pursuant to a statutory provision or rule that
is limited solely to dismissals for such reasons, including (but not necessarily
limited to) 28 U.S.C. §§1915A(b)(1), 1915(e)(2)(B)(i), 1915e(2)(B)(ii) or Rule
12(b)(6) of the Federal Rules of Civil Procedure.”
complaint was filed; allegations that the prisoner has faced imminent danger
in the past are insufficient to trigger the exception to section 1915(g). See
Abdul-Akbar v. McKelvie, 239 F.3d 307 (3d Cir. 2001) (overruling Gibbs v.
Roman, 116 F.3d 83, 86 (3d Cir. 1997)). In making this determination, the
court should construe all allegations in a complaint in favor of the plaintiff.
Gibbs v. Cross, 160 F.3d 962, 965 (3d Cir. 1998); Gibbs v. Roman, 116 F.3d
at 86. The Court of Appeals for the Third Circuit has instructed that:
“[i]mminent” dangers are those dangers which are about to occur at
any moment or are impending. By using the term “imminent,” Congress
indicated that it wanted to include a safety valve for the “three strikes”
rule to prevent impending harms, not those harms that had already
occurred. The imminent danger exception allows the district court to
permit an otherwise barred prisoner to file a complaint I.F.P. if the
prisoner could be subject to serious physical injury and does not then
have the requisite filing fee.
Abdul-Akbar, 239 F.3d at 315 (internal citation omitted).
After reviewing the allegations contained in the instant Complaint, the
Court finds that Washington has not satisfied the imminent danger exception.
As our appellate court instructed, the Court may “deny leave to proceed IFP
when a prisoner’s claims of imminent danger are conclusory or ridiculous.”
Ball v. Famiglio, 726 F.3d 448, 468 (3d Cir. 2013) (quotations omitted). As
the United States Court of Appeals for the Third Circuit has noted, “[a] court
need not accept all allegations of injury” or “accept without question the truth
of the plaintiff’s allegations.” Brown v. City of Philadelphia, 331 F. App’x 898,
900 (3d Cir. 2009). “To the contrary, a court may discredit ‘factual claims of
imminent danger that are ‘clearly baseless’.” Id. (quoting Gibbs v. Cross, 160
F.3d 962, 967 (3d Cir. 1998)).
Thus, the Court will grant Defendants’ motion for reconsideration and
revoke Plaintiff Washington’s in forma pauperis status.
III. Conclusion
Based on the discussion above, Plaintiff Patterson’s request to be
removed from this action will be granted. Defendants’ motion to dismiss
Plaintiffs’ Permenter and Grimes for their failure to comply with Fed. R. Civ.
P. Rule 11, will be granted. Defendants’ motion for reconsideration of this
Court’s May 6, 2020 Order granting Plaintiff Washington’s motion for leave
to proceed in forma pauperis will be granted and Plaintiff Washington’s
motion to proceed in forma pauperis will be denied in accordance with 28
U.S.C. §1915(g). This action will be dismissed, without prejudice, to Plaintiff
Washington refiling it by paying the full statutory and administrative filing fee.
A separate Order shall issue.
s/ Malachy E. Mannion
MALACHY E. MANNION
United States District Judge
DATE: March 29, 2021
20-0122-01