Bailey v. Heist

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF PENNSYLVANIA

DEMETRIUS BAILEY, :

Plaintiff : CIVIL ACTION NO. 3:24-0049

v. : (JUDGE MANNION)

TONYA HEIST, et al., :

Defendants :

MEMORANDUM

I. Background

Plaintiff, Bailey an inmate confined in the State Correctional Institution,

Houtzdale (“SCI-Houtzdale”), Pennsylvania, filed the above captioned civil

rights action pursuant to 42 U.S.C. §1983. The Plaintiff raises claims of

denial of access to courts, retaliation, and destruction of legal and personal

property. Id.

By Order dated February 15, 2024, Plaintiff’s motion to proceed in

forma pauperis was granted and service of process was issued. (Doc. 7). On

March 19, 2024, Defendants filed a motion to reconsider this Court’s

February 15, 2024 Order granting in forma pauperis status to Plaintiff. (Doc.

12).

For the reasons set forth below, the Court will grant Defendants’ motion

for reconsideration and withdraw Plaintiff’s in forma pauperis status because

within the meaning of 28 U.S.C. §1915(g). The Court will deny Plaintiff’s

motion for leave to proceed in forma pauperis and dismiss the action without

prejudice to Plaintiff reopening it by paying the full statutory and

administrative filing fee.

II. Discussion

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

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 reference

several civil actions recognizing that Plaintiff has filed more than three prior

civil actions that were dismissed as malicious, frivolous or failed to state a

claim. See Doc. 13 at 2, citing Bailey v. James, 280 A.3d 349 (Table), 2022

WL 1632716, at *5-6 (Pa. Commw. Ct. 2022) (dismissing petition for failure

to state a claim); Bailey v. Clark, 2018 WL 654727, at *2 (W.D. Pa. Jan. 9,

2018) (finding Plaintiff is three-striker and denying his IFP application); Bailey

v. Meyers, 2009 WL 4062168, at *2 (W.D. Pa. Nov. 23, 2009) (by citing at

least three prior case dismissals of prison conditions complaints, sua sponte

dismissing case pursuant to 28 U.S.C. §1915(g)); Bailey v. Miller, 943 A.2d

1007, 1009-1010, n. 4-9 (Pa. Commw. Ct. 2008) (revoking IFP status citing

more than three cases dismissed); Bailey v. Wakefield, 933 A.2d 1081, 1084

(Pa. Commw. Ct. 2007) (affirming county court’s denial of IFP application).

This new evidence demonstrates the need for this Court to correct a clear

error of fact when it granted Plaintiff’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.

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

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).

In the present matter, Bailey’s claims of imminent danger fail to meet

that standard. Initially, the Court notes that when Plaintiff filed his complaint

on January 11, 2024, he failed to include either the filing fee or an application

to proceed in forma pauperis. (See Doc. 1). Plaintiff did not file an application

to proceed in forma pauperis until February 5, 2024. (Doc. 4). Thus, the Court

could not evaluate Plaintiff’s application and any threat of imminent serious

physical injury until it received the appropriate application. Neither Plaintiff’s

complaint, nor his application to proceed in forma pauperis contained any

allegations of imminent danger. On February 15, 2024, Plaintiff notified the

Court that he had been transferred to the State Correctional Institution,

Houtzdale, Pennsylvania. (Doc. 6). Other courts to have considered this

circumstance have determined that any risk of injury at a prison facility is

eliminated after the plaintiff is later transferred to another facility.1

1 See, e.g., McGore v. Lutz, No. 09-cv-13031, 2009 WL 2488101, at *2

(E.D. Mich., Aug. 11, 2009) (“The events giving rise to Plaintiff's complaint,

i.e., the alleged failure to change his cell following a fellow inmate's threats

in 2007 and the alleged verbal harassment in 2008, do not pose an imminent

danger of serious physical injury, particularly given that Plaintiff has been

transferred to another prison. Plaintiff has thus failed to show that he falls

within the exception to the three-strikes rule.”); Gamble v. Maynard, No. 06-

cv-1543, 2008 WL 150364, at *5 (N.D.N.Y. Jan. 14, 2008) (“While plaintiff's

complaint intimates that the matter was not an isolated incident [of assault

by correctional officers], there is nothing in his complaint, particularly in view

of the fact that he is no longer incarcerated at the facility at which the alleged

assaults occurred, having since been transferred to the Southport

Correctional Facility, to demonstrate that he is in imminent danger of serious

physical injury.”); Tucker v. McCauley, No. 09-cv-12757, 2010 WL 2884642,

at *2 (E.D. Mich. April 9, 2010), report and recommendation adopted in

relevant part, rejected in part on other grounds, 2010 WL 2884641 (E.D.

Mich. July 20, 2010) (“Shortly after his complaint was filed, Plaintiff was

transferred to Oaks Correctional Facility in Manistee, Michigan.

Consequently, Plaintiff no longer receives treatment from the Defendants

and any danger that the Defendants may have posed to the Plaintiff as a

(footnote continued on next page)

More fundamentally however, Plaintiff has failed to allege the imminent

nature of “serious physical injury’. Plaintiff’s complaint encompasses various

allegations of Defendants’ retaliatory actions against Plaintiff for filing civil

rights actions and grievances against the Defendants. (Doc. 1 at 7-14).

These retaliatory acts consisted of confiscation and destruction of legal and

personal property, depriving Plaintiff of his single cell status and unlawfully

placing Plaintiff in the RHU. Id. Plaintiff claims these transgressions began

on February 26, 2021, the date he was transferred to SCI-Camp Hill, and

continued until December 6, 2023, when Plaintiff claims that his property was

removed from his cell and his typewriter was broken in the process. Id.

Initially, the Court notes that Plaintiff’s claims occurred anywhere from

one to thirty-six months prior to filing the instant action. Allegation of a past

injury that has not recurred does not constitute an “imminent” danger. See

Famiglio, 726 F.3d at 468. The only connective thread offered by the Plaintiff

is a generalized allegation that all incidents are part of a larger pattern of

harassment and retaliation by correctional officers, but such a generalized

allegation is insufficient to connect these incidents “into a pattern of threats

of serious physical injury that are ongoing.” See Abdul–Akbar, 239 F.3d at

result of their alleged ongoing interference with doctor’s orders no longer

exists.”)

315 n. 1. Regardless, there are no allegations that Plaintiff suffered or was

at the risk of suffering an adverse health consequence or physical injury from

the alleged retaliatory acts. As such, the Plaintiff has not alleged sufficient

facts, either in the original complaint or in his application to proceed in forma

pauperis, to establish that he was “under imminent danger of serious

physical injury” at the time the complaint was filed. See Abdul–Akbar, 239

F.3d at 312.

After reviewing the allegations contained in the instant Complaint, the

Court finds that Plaintiff 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’s in forma pauperis status.

III. Conclusion

Based on the discussion above, Defendants’ motion for

reconsideration of this Court’s February 15, 2024 Order granting Plaintiff’s

motion for leave to proceed in forma pauperis will be granted and Plaintiff’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

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: April 29, 2024

24-0049-01