Neff v. Penn. Legislators

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

KEITH D. NEFF, No. 4:23-CV-01601

Plaintiff, (Chief Judge Brann)

v.

PENN. LEGISLATORS, et al.,

Defendants.

MEMORANDUM OPINION

OCTOBER 31, 2023

Plaintiff Keith D. Neff lodged the instant pro se civil rights lawsuit under 42

U.S.C. § 1983 in September 2023. He has moved for leave to proceed in forma

pauperis (IFP) pursuant to 28 U.S.C. § 1915. However, because Neff has filed at

least three federal lawsuits while incarcerated that have been dismissed for failure

to state a claim, and because he is not facing an imminent threat of serious physical

injury, he is statutorily barred from proceeding IFP and must pay the full filing fee

to proceed with this action.

I. BACKGROUND

Neff is a well-known litigant in this Court, not only for his repeat

appearances but also due to his proclivity for filing irrelevant and implausible

“memoranda” and other documents in his cases.1 For example, in one Section

2254 habeas case, Neff lodged more than 150 such frivolous filings.2

More importantly, Neff has also filed three previous civil rights lawsuits in

this district that have been dismissed as meritless.3 All three cases were dismissed

for failure to state a claim upon which relief may be granted,4 giving Neff three

“strikes” under 28 U.S.C. § 1915(g). Neff additionally had a recent lawsuit

dismissed for failing to pay the full filing fee after his motion for leave to proceed

IFP was denied based on Section 1915(g).5 Neff has now lodged a fifth civil rights

lawsuit and once again moves for leave to proceed IFP.6 But Neff cannot proceed

IFP in this case because he has already struck out and is not in imminent danger of

serious physical injury.

II. DISCUSSION

“To help staunch a ‘flood of nonmeritorious’ prisoner litigation, the Prison

Litigation Reform Act of 1995 (PLRA) established what has become known as the

1 See, e.g., Docs. 4-7.

2 See generally Neff v. Wakefield, 4:21-cv-1334 (M.D. Pa.).

3 See generally Neff v. U.S. Bank, 1:21-cv-1972-YK (M.D. Pa.); Neff v. Comm’rs of Schuylkill

Cnty., 3:21-cv-993-RDM (M.D. Pa.); Neff v. Comm’rs of Centre Cnty., 3:21-cv-1342-RDM

(M.D. Pa.).

4 See Neff v. U.S. Bank, 1:21-cv-1972-YK, Docs. 19, 27 (M.D. Pa.); Neff v. Comm’rs of

Schuylkill Cnty., 3:21-cv-993-RDM, Docs. 93, 99 (M.D. Pa.); Neff v. Comm’rs of Centre Cnty.,

3:21-cv-1342-RDM, Docs. 69, 75 (M.D. Pa.).

5 See Neff v. Walker, 4:23-cv-752, Docs. 33, 34, 42 (M.D. Pa.).

6 See Doc. 8.

three-strikes rule.”7 This rule is codified in Section 1915(g) of Title 28 of the

United States Code and provides:

In no event shall a prisoner bring a civil action or appeal a judgment in

a civil action or proceeding under this section if the prisoner has, on 3

or more prior occasions, while incarcerated or detained in any facility,

brought an action or appeal in a court of the United States that was

dismissed on the grounds that it is frivolous, malicious, or fails to state

a claim upon which relief may be granted, unless the prisoner is under

imminent danger of serious physical injury.8

The three-strikes rule supplies “a powerful economic incentive” for prisoners to

avoid filing “frivolous lawsuits or appeals.”9

Within Section 1915(g), Congress carved out a limited exception to the

three-strikes rule, permitting a prisoner who has accrued three strikes to proceed

IFP in a subsequent case if he establishes that he is facing “imminent danger of

serious physical injury.”10 The United States Court of Appeals for the Third

Circuit has held that an inmate “may invoke the ‘imminent danger’ exception only

to seek relief from a danger which is ‘imminent’ at the time the complaint is

filed.”11 “Imminent dangers” are ones which are “about to occur at any moment or

7 Lomax v. Ortiz-Marquez, 590 U.S. __, 140 S. Ct. 1721, 1723 (2020) (quoting Jones v. Bock,

549 U.S. 199, 203 (2007)).

8 28 U.S.C. § 1915(g).

9 Abdul-Akbar v. McKelvie, 239 F.3d 307, 314 (3d Cir. 2001) (en banc).

10 28 U.S.C. § 1915(g).

11 Abdul-Akbar, 239 F.3d at 312.

are impending,” not harms that have already occurred.12 Claims of imminent

danger that are “conclusory or ridiculous” do not qualify.13

As noted above, Neff has filed three previous civil rights cases in this

District that were dismissed for failure to state a claim upon which relief may be

granted. The Court additionally observes that, although case numbers 3:21-cv-993

and 3:21-cv-1342 were consolidated and dismissed in a single order, each case still

counts as a strike. Consolidation does not “merge the suits into a single cause”;14 it

is simply a method for a judicial officer to manage multiple related cases that

promotes “convenience and economy in [judicial] administration.”15

PLRA strike counting for consolidated cases appears to have been directly

addressed by only one circuit court of appeals. In Akassy v. Hardy,16 the Second

Circuit held that four cases consolidated on appeal and dismissed as legally

frivolous in a single order counted as four separate strikes under the PLRA.17 In its

analysis, the panel quoted favorably an earlier Second Circuit decision explaining

12 Ball v. Famiglio, 726 F.3d 448, 467 (3d Cir. 2013), abrogated in part on other grounds by

Coleman v. Tollefson, 575 U.S. 532 (2015).

13 Id. at 468.

14 See Hagan v. Rogers, 570 F.3d 146, 161 n.11 (3d Cir. 2009) (observing that, before there can

be a consolidation under Federal Rule of Civil Procedure 42(a), “there are, by definition,

separate actions”); Cella v. Togum Constructeur Ensembleier en Industrie Alimentaire, 173

F.3d 909, 912 (3d Cir. 1999) (“[C]onsolidation . . . does not merge the suits into a single cause,

or change the rights of the parties, or make those who are parties in one suit parties in another.”

(quoting Johnson v. Manhattan Ry. Co., 289 U.S. 496-97 (1933))).

15 In re Cmty. Bank of N. Va., 418 F.3d 277, 298 n.12 (3d Cir. 2005).

16 887 F.3d 91 (2d Cir. 2018).

17 See id. at 96.

that a prisoner-plaintiff’s “three separate [district court] filings that were each

dismissed for failure to state a claim . . . constitute three ‘prior occasions’ where

[the prisoner-plaintiff] has ‘brought’ actions dismissed for failure to state a claim[,]

28 U.S.C. § 1915(g), and thus count as three strikes. The [district] court’s act of

consolidating the three cases did not convert the dismissals into a single strike.”18

The Court finds the Second Circuit’s reasoning sound and consonant with

Third Circuit cases discussing the effect of consolidation under Federal Rule of

Civil Procedure 42(a).19 Consequently, although Neff’s civil actions in case

numbers 3:21-cv-993 and 3:21-cv-1342 were eventually consolidated and

dismissed together, Neff “brought” each action separately and thus each dismissed

case counts as a strike under the plain language of Section 1915(g).20

Neff, therefore, has three strikes and he has not asserted or pled facts that

indicate that he is in imminent danger of serious physical injury.21 Accordingly,

Neff’s application for IFP will be denied. If Neff desires to proceed with the

instant case, he must pay the requisite $402 fee, representing the $350 filing fee

and $52 administrative fee applicable in the Middle District of Pennsylvania. If

18 Id. (alterations in original) (internal quotation marks omitted) (quoting Palmer v. N.Y. State

Dep’t of Corr., 342 F. App’x 654, 655-56 (2d Cir. 2009) (nonprecedential)).

19 See, e.g., Hagan, 570 F.3d at 161 n.11; Cella, 173 F.3d at 912.

20 See Akassy, 887 F.3d at 96; Palmer, 342 F. App’x at 655-56.

21 Neff’s instant complaint appears to attempt to collaterally attack his state convictions, claiming

vague and undeveloped due process violations. See Doc. 1 at 4. Neff is clearly asserting past

harms, not impending ones, and thus cannot avail himself of the “imminent danger” exception.

See Ball, 726 F.3d at 467.

Neff does not timely pay the full fee, his case will be dismissed without prejudice

under 28 U.S.C. § 1914.

III. CONCLUSION

Neff has struck out under the PLRA, so the Court will deny his motion for

leave to proceed in forma pauperis in the instant case. If Neff wants to continue

with this case, he will be required to pay the full $402 filing fee. An appropriate

Order follows.

BY THE COURT:

s/ Matthew W. Brann

Matthew W. Brann

Chief United States District Judge