The opinion
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF PENNSYLVANIA
DAWN BALL, #20190001029,
Plaintiff, CIVIL ACTION NO. 3:21-cv-00333
v. (SAPORITO, M.J.)
STATE TROOPER-OFFICER
MARK A. KIRBY,
Defendant.
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, withdraw the summons issued in reliance thereon, 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 22, 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 1,
2021. (Doc. 6.)
The complaint names a state trooper as the sole defendant. It
alleges that the defendant forcibly entered her apartment without a
warrant, used excessive force in placing her under arrest, and conducted
an unlawful search of the apartment after she was removed from it.
Together with the complaint, the plaintiff submitted a motion for
leave to proceed IFP in this action. (Doc. 8; see also Doc. 1.) Based on the
plaintiff’s representations with respect to her finances, we granted the
motion on February 25, 2021. (Doc. 12.) That same day, the clerk mailed
a request for waiver of service to the defendant. (Doc. 14.) The court was
later informed that the defendant’s employer required personal service
of process as a matter of policy. (Doc. 17.) A summons was issued to the
United States Marshal Service on March 19, 2021, for personal service of
process upon the defendant. (Doc. 19.) On April 6, 2021, notwithstanding
the Pennsylvania State Police policy to the contrary, the defendant
entered his appearance through counsel and waived formal service of
process. (Doc. 26; Doc. 27.)
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
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
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).
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
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).
2 Notably, the appellant in this citation is the plaintiff in this case.
“[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)).
Reviewing the pro se complaint, it is clear that no imminent danger
of serious physical injury has been credibly alleged. The complaint
alleges that, on October 21, 2019, the defendant forcibly entered her
apartment without a warrant, breaking down the door. It alleges that,
once inside, the defendant grabbed Ball’s head and threw her to the floor,
causing her to be injured. The complaint alleges that, after she had been
transported away from the scene, the defendant searched her apartment
without her presence or her consent. It further alleges that she only
received a copy of a search warrant “days later,” and that the search
warrant was “invalid and illegal” for unspecified reasons.
Based on these allegations, the plaintiff has plainly failed to allege
any imminent danger of serious physical injury. While some physical
injury is alleged, there is nothing in the complaint to suggest that it
might constitute serious physical injury. Moreover, the danger alleged is
entirely retrospective in nature. Any further danger of physical injury—
serious or not—had clearly passed by the time the plaintiff filed her
complaint in this action, more than fourteen months later.
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,
the summons will be withdrawn, 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