The opinion
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF PENNSYLVANIA
DAWN BALL, #20190001029,
Plaintiff, CIVIL ACTION NO. 3:21-cv-00434
v. (SAPORITO, M.J.)
WARDEN GARRY HAIDLE, et al.,
Defendants.
MEMORANDUM
The plaintiff in this case, Dawn Marie Ball, was previously granted
leave to proceed in forma pauperis (“IFP”) in this action. It has come to
our attention that the incarcerated plaintiff is subject to the “three
strikes rule” set forth in 28 U.S.C. § 1915(g). For the reasons stated
herein, upon sua sponte reconsideration of our prior order granting leave
to proceed IFP, we will revoke the plaintiff’s IFP status, vacate our prior
order, and order the plaintiff to pay the applicable filing and
administrative fees in full or face summary dismissal of this action.
I. BACKGROUND
On January 26, 2021, our sister court received a pro se complaint
signed and dated by the plaintiff on January 2, 2021. (Doc. 2.) Because
the parties and the events giving rise to this action were located in this
judicial district, the action was transferred to this court on February 3,
2021. (Doc. 6.)
The complaint names two defendants: the warden of Monroe
County Correctional Facility and a nurse practitioner who provides
primary medical care to inmates incarcerated there. It alleges that the
warden refused to implement adequate policies to maintain sanitary
conditions or to prevent the spread of COVID-19 within the jail. In
particular, the complaint alleges that the warden was responsible for her
placement in cells with other inmates who were COVID-positive. The
complaint alleges that the plaintiff contracted both hepatitis B and
COVID-19 as a result. It further alleges that the nurse practitioner was
deliberately indifferent to the plaintiff’s serious medical needs, refusing
to provide her with adequate treatment for both conditions.
Together with the complaint, the plaintiff submitted a motion for
leave to proceed IFP in this action. (Doc. 12; see also Doc. 1.) Based on the
plaintiff’s representations with respect to her finances, we granted the
motion on March 26, 2021. (Doc. 17.) That same day, the clerk mailed a
request for waiver of service to the defendants. (Doc. 18.) On April 12,
2021, the nurse practitioner entered his appearance through counsel and
waived formal service of process. (Doc. 19; Doc. 20.) He also filed a motion
to dismiss the complaint for failure to state a claim and a brief in support
of that motion. (Doc. 21; Doc. 22.) Because the time for the warden to
respond to the request for waiver has not yet expired, a summons has not
yet issued in this case.
We have now learned that this plaintiff is subject to the “three
strikes rule” set forth in 28 U.S.C. § 1915(g) because she 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 Ball v. Hummel,
577 Fed. App’x 96, 97 (3d Cir. 2014) (per curiam) (identifying three
strikes accumulated prior to May 2012).1 “Accordingly, [she] may not
proceed in forma pauperis unless [she] was in imminent danger of serious
1 We note that Ball is currently incarcerated at Monroe County
Correctional Facility, a county jail where she has been assigned Inmate
Number 20190001029. Based on publicly available records, it is clear that
she is the very same Dawn Marie Ball, with a birthdate of May 18, 1970,
who was previously incarcerated at various state prisons in the custody
of the Pennsylvania Department of Corrections, where she was assigned
Inmate Number OL0342. See Pa. SAVIN Search Form (Ball, Dawn), at
https://www.vinelink.com/classic/#/home/site/39000 (last checked Apr.
15, 2021). See generally Fed. R. Evid. 201; Ilarraza v. Chuta, Civil Action
No. 1:15-cv-2406, 2017 WL 1246363, at *2 (M.D. Pa. Feb. 10, 2017)
(taking judicial notice of SAVIN offender information search results),
report and recommendation adopted by 2017 WL 1208347 (M.D. Pa. Apr.
3, 2017).
physical injury at the time [she] filed [her] complaint.” Id. (citing Abdul-
Akbar v. McKelvie, 239 F.3d 307, 310–11 (3d Cir. 2001) (en banc)).
II. DISCUSSION
The plaintiff is barred from proceeding without prepayment of fees
unless she 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
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 (3d 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) (internal quotation marks and alterations omitted),2 abrogated on
other grounds by Coleman v. Tollefson, 135 S. Ct. 1759 (2015). “When
2 Notably, the appellant in this citation is the plaintiff in this case.
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 Ball, 726 F.3d at 468).
“[A] 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 F.
Supp. 2d at 483 (citing 28 U.S.C. § 1915(g)).
Based on the allegations of the pro se complaint, it is clear that no
imminent danger of serious physical injury has been credibly alleged. The
complaint alleges that the plaintiff was made to live and work in
unsanitary conditions and in close proximity to COVID-positive inmates.
It alleges that the nurse practitioner refused to retest her for COVID-19
after she was relocated to new cells with other inmates who were COVID-
positive. It alleges that the nurse practitioner refused to provide medical
treatment after diagnosing her with hepatitis B, and he refused to send
her out to a hospital for treatment of her COVID-19. Most importantly,
the complaint alleges that the plaintiff has already contracted hepatitis
B and COVID-19.3
We find that the plaintiff has failed to allege any imminent danger
of serious physical injury. 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 two infectious diseases that she
has already contracted, to unsanitary conditions in general, and to other
inmates who are COVID-positive—all of which has already occurred.
Moreover, the exposure to COVID-positive inmates allegedly occurred
after the plaintiff herself had contracted COVID-19.
Based on these allegations, the plaintiff has plainly failed to allege
an imminent danger of serious physical injury. Although either hepatitis
B or COVID-19 may in some circumstances ultimately result in serious
3 Indeed, the complaint and attached exhibits indicate that she was
already suffering with symptoms of COVID-19 before she was moved into
the first cell with other inmates who were COVID-positive.
physical injury, the danger alleged here is entirely retrospective in
nature. The danger of exposure to unsanitary conditions in general or to
other inmates who are COVID-positive had clearly passed by the time
the plaintiff filed her complaint in this action, months after she had
already contracted both diseases. Moreover, the mere allegation that the
plaintiff had been denied unspecified medical treatment for her hepatitis
B, without more, is insufficiently specific to establish an imminent
danger to her health. See Mitchell v. Fed. Bureau of Prisons, 587 F.3d
415, 421–22 (D.C. Cir. 2009) (citing Abdul-Akbar v. McKelvie, 239 F.3d
307, 315 (3d Cir. 2001) (en banc)).
III. CONCLUSION
Based on the foregoing, the plaintiff’s IFP status will be revoked,
our order granting her motion for leave to proceed IFP will be vacated,
and the plaintiff will be ordered to pay the applicable filing fee in full
within thirty days or dismissal of this action will be recommended.
An appropriate Order follows.
Dated: April 16, 2021 s/Joseph F. Saporito, Jr.
JOSEPH F. SAPORITO, JR.
United States Magistrate Judge