The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
RODRICK MAURICE BRAYBOY, :
Plaintiff, :
:
v. : CIVIL ACTION NO. 24-CV-2604
:
DEPARTMENT OF JUSTICE, et al. :
Defendants. :
MEMORANDUM OPINION
GOLDBERG, J. July 19, 2024
Plaintiff Rodrick Maurice Brayboy, a convicted state prisoner in custody in SCI Mahanoy,
filed this civil action against the United States Department of Justice and Attorney General Merrick
Garland. Brayboy seeks leave to proceed in forma pauperis. Because Brayboy has obtained three
prior “strikes” and has not alleged an imminent danger of serious physical injury pursuant to 28
U.S.C. § 1915(g), I will deny leave to proceed in forma pauperis and require that Brayboy pay the
full filing fee if he wishes to continue with the case.
I. FACTUAL ALLEGATIONS
Brayboy asserts claims for money damages and injunctive relief against the Defendants.
(Compl. at 6.) He alleges that the Defendants violated his due process and equal protection rights
under the Fourteenth Amendment by failing to investigate complaints he filed with the Department
of Justice via email and telephone. (Id. at 4-6.) He also complains of “unauthorized lawsuits being
filed in [his] name and libel from [his] face and info being put on [the] internet.” (Id. at 6.)
II. STANDARD OF REVIEW
The in forma pauperis statute, 28 U.S.C. § 1915, allows indigent litigants to bring an action
in federal court without prepayment of filing fees, ensuring that such persons are not prevented
“from pursuing meaningful litigation” because of their indigence. Abdul-Akbar v. McKelvie, 239
F.3d 307, 312 (3d Cir. 2001) (en banc) (internal quotation marks omitted). But, as Congress has
recognized, people who obtain in forma pauperis status are “not subject to the same economic
disincentives to filing meritless cases that face other civil litigants,” and thus the provision is
susceptible to abuse. Id. (citing 141 Cong. Rec. S7498-01, S7526 (daily ed. May 25, 1995)
(statement of Sen. Kyl)).
“[I]n response to the tide of substantively meritless prisoner claims that have swamped the
federal courts,” Congress enacted the Prison Litigation Reform Act (“PLRA”) in 1996. Ball v.
Famiglio, 726 F.3d 448, 452 (3d Cir. 2013) (quoting Shane v. Fauver, 213 F.3d 113, 117 (3d Cir.
2000)) (internal quotation marks omitted), abrogated in part on other grounds by Coleman v.
Tollefson, 135 S. Ct. 1759, 1763 (2015). Among other things, the PLRA implemented the so-
called “three strikes rule,” which 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.
28 U.S.C. § 1915(g) (emphasis added). Put more simply, under the PLRA, a prisoner with three
prior “strikes” can proceed in forma pauperis only if he is in imminent danger of serious physical
injury. Courts must consider a pro se prisoner’s allegations of imminent danger “under our liberal
pleading rules, construing all allegations in favor of the complainant.” Gibbs v. Cross, 160 F.3d
962, 966 (3d Cir. 1998).
According to § 1915(g), a prisoner who on three or more prior occasions while incarcerated
has filed an action or appeal in federal court that was dismissed as frivolous, malicious, or for
failure to state a claim upon which relief may be granted, must be denied in forma pauperis status
unless he was in imminent danger of serious physical injury at the time that the complaint was
filed. Abdul-Akbar, 239 F.3d at 310-11. 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), 1915(e)(2)(B)(ii), or Rule 12(b)(6) of the Federal Rules of Civil Procedure.”
Byrd v. Shannon, 715 F.3d 117, 126 (3d Cir. 2013). “A strike-call under Section 1915(g) . . . hinges
exclusively on the basis for the dismissal, regardless of the decision’s prejudicial effect.” Lomax
v. Ortiz-Marquez, 140 S. Ct. 1721, 1724-25 (2020), abrogating Millhouse v. Heath, 866 F.3d 152,
161 (3d Cir. 2017).
III. “THREE-STRIKE” ANALYSIS
A. Brayboy Has Accumulated Three Strikes.
I conclude that Brayboy has accumulated at least three strikes for purposes of § 1915(g).
In Brayboy v. Pagano, No. 21-4247 (E.D. Pa.), Brayboy’s claims for violations of his constitutional
rights under the Fourth, Sixth, Eighth, and Fourteenth Amendments based on events during his
criminal trial were dismissed on April 20, 2022, in part with prejudice for failure to state a claim
pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii), and in part without prejudice because they were barred
under Heck v. Humphrey, 512 U.S. 477, 486-87 (1994) (explaining that “to recover damages [or
other relief] for allegedly unconstitutional conviction or imprisonment, or for other harm caused
by actions whose unlawfulness would render a conviction or sentence invalid, a § 1983 plaintiff
must prove that the conviction or sentence has been reversed on direct appeal, expunged by
executive order, declared invalid by a state tribunal authorized to make such determination, or
called into question by a federal court’s issuance of a writ of habeas corpus”). (See No. 21-4247,
ECF No. 13 at 9.) The dismissal of this case on April 20, 2022 in its entirety, in part on enumerated
statutory grounds and in part pursuant to Heck, constitutes a strike under § 1915(g). See Garrett v.
Murphy, 17 F.4th 419, 427 (3d Cir. 2021) (“We now join the Fifth, Tenth, and D.C. Circuits in
holding that the dismissal of an action for failure to meet Heck’s favorable-termination
requirement counts as a PLRA strike for failure to state a claim. We do so for a simple reason:
Any other rule is incompatible with Heck.”).
In Brayboy v. Gov’t Juris. Off., No. 23-4975 (E.D. Pa.), Brayboy’s claims for false arrest,
false imprisonment, and due process violations were dismissed with prejudice on March 7, 2024,
for failure to state a claim pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii), because they were facially
untimely. (Id., ECF No. 13 at 3, 5.) The dismissal of this case in its entirety constitutes a strike for
purposes of § 1915(g).
In Brayboy v. Magistrate Judge Lynne Sitarski, No. 24-1087 (E.D. Pa.), Brayboy’s
Complaint that sought to challenge actions taken in his separate habeas corpus proceeding was
dismissed with prejudice on May 29, 2024, for failure to state a claim, pursuant to 28 U.S.C.
§ 1915(e)(2)(B)(ii). (Id., ECF No. 6 at 7.) The dismissal of this case in its entirety constitutes a
strike for purposes of § 1915(g).
In Brayboy v. Kullner, No. 23-1651 (M.D. Pa.), in a memorandum and order filed
December 4, 2023, the Court screened and dismissed Brayboy’s due process claims under the
Fourteenth Amendment with prejudice and his access-to-courts claim under the First Amendment
without prejudice to amendment, pursuant to 28 U.S.C. § 1915A(b)(1). (Id., ECF No. 12 at 10-
11.) Then, on January 26, 2024, when Brayboy failed to file an amended complaint within the time
allowed, even after being provided extensions of time to do so, his remaining claim was dismissed
with prejudice under § 1915A(b)(1). (Id., ECF No. 20.) In combination, these Orders dismissed all
claims in the case with prejudice and constitute a strike for purposes of § 1915(g).
B. Brayboy Does Not Allege Imminent Danger.
Because Brayboy has accumulated three strikes, he is “out” and can no longer proceed in
forma pauperis in any federal court unless he can show that he is in imminent danger of serious
physical injury at the time he brought his Complaint. The “imminent danger” exception to the
three-strikes rule 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. Ball, 726 F.3d at 467. It “creates a narrow opening for a
particular type of claim; it does not give prisoners . . . a license to swamp the court with claims
whenever they successfully state a claim of imminent danger.” Brown v. Lyons, 977 F. Supp. 2d
475, 481-82 (E.D. Pa. 2013) (citing Pettus v. Morgenthau, 554 F.3d 293, 297 (2d Cir. 2009)).
“Imminent dangers are those dangers which are about to occur at any moment or are impending.”
Abdul-Akbar, 239 F.3d at 315 (internal quotation marks omitted). Past dangers are not imminent
dangers. See Ball, 726 F.3d at 467. Vague, general, or conclusory allegations are likewise
insufficient to establish that a plaintiff is in imminent danger. Id. Finally, “there must be a nexus
between the imminent danger a three-strikes prisoner alleges to obtain IFP status and the legal
claims asserted in his complaint.” Pettus, 554 F.3d at 297; see also Ball v. Hummel, 577 F. App’x
96, 98 n.1 (3d Cir. 2014) (per curiam). In other words, the claimed imminent danger must relate
to the legal claims the prisoner pursues. Id.; see also Brown v. U.S. Dist. Ct., No. 13-7229, 2014
WL 1225878, at *1 (E.D. Pa. Mar. 25, 2014) (“In short, § 1915(g) requires two things: the
allegation of imminent danger and a claim for relief that if granted will preclude the danger from
becoming a reality.”).
I find that Brayboy’s allegations do not meet the imminent danger standard of Section
1915(g). Brayboy does not explicitly assert that he is in imminent danger, nor do his allegations
about the lack of investigation into his civilian complaints rise to such a level. Because there is no
suggestion in any of his claims concerning imminent danger of serious physical injury at the time
he brought this case, I find that the imminent danger exception does not apply.
IV. CONCLUSION
Because Brayboy is a “three-striker” who is prohibited from proceeding in forma pauperis
unless he is in imminent danger of serious physical injury at the time of filing, and since he was
not in imminent danger when he submitted this Complaint, I will deny Brayboy’s motion to
proceed in forma pauperis pursuant to 28 U.S.C. § 1915(g). Should Brayboy desire to litigate his
claims, he must pay the full filing fee in advance. An appropriate Order follows, which gives
Brayboy an opportunity to pay the fees in the event he seeks to proceed with this case.1
1 If Brayboy pays the filing fee, since he is a prisoner, the case is still subject to statutory
screening pursuant to 28 U.S.C. § 1915A.