“[W]hen a state prisoner is challenging the very fact or duration of his physical imprisonment, and the relief he seeks is a determination that he is entitled to immediate release or a speedier release from that imprisonment, his sole federal remedy is a writ of habeas corpus.”
How later courts described this case
- “[W]hen a state prisoner is challenging the very fact or duration of his physical imprisonment, and the relief he seeks is a determination that he is entitled to immediate release or a speedier release from that imprisonment, his sole federal remedy is a writ of habeas corpus.”
Written by the judges who cited it.
The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
TOLEKSIS BIIN TUTORA, :
Plaintiff, :
:
v. : CIVIL ACTION NO. 24-CV-5409
:
FIRST JUDICIAL DISTRICT :
OF PHILADELPHIA, et al., :
Defendants. :
MEMORANDUM
GOLDBERG, J. JANUARY 29, 2025
Plaintiff Toleksis Biin Tutora, an individual in the custody of the Commonwealth of
Pennsylvania, filed this pro se civil action against the First Judicial District of Philadelphia, the
Philadelphia Sherriff’s Department, a private attorney, and employees of the Philadelphia
Probation Department’s Mental Health Unit. (See Compl., ECF No. 1.) The Court ordered Tutora
to either file a motion to proceed in forma pauperis or pay the filing fee to commence his civil
case. (See ECF No. 3.) Tutora then filed an Amended Complaint, adding numerous Defendants,
and a motion to proceed in forma pauperis. (See ECF Nos. 5, 6.) Because Tutora has obtained
three prior “strikes” and has not alleged an imminent danger of serious physical injury pursuant to
28 U.S.C. § 1915(g), the Court will deny leave to proceed in forma pauperis and require that
Tutora pay the full filing fee if he wishes to continue with the case.1
1 Tutora provided a civilian address for himself in his initial Complaint (See ECF No. 1 at 1).
However, his submissions reveal that he was held at Norristown State Hospital at the time of
filing his Complaint. (See id. at 5 (envelope bearing return address)). Publicly available court
records reflect that he was convicted of criminal offenses in state court and is an involuntarily
committed patient on the basis that he violated the terms of his probation, so he is subject to the
provisions of the Prison Litigation Reform Act. See 28 U.S.C. § 1915(h); see also
Commonwealth v. Tutora, CP-51-CR-0011617-2016 (C.P. Phila.).
I. FACTUAL ALLEGATIONS
Tutora asserts claims for money damages and injunctive relief against the Defendants.
(Am. Compl. at 1-2.) Although his Amended Complaint is difficult to follow, the Court
understands him to allege due process violations related to the adjudication of his probationary
and confinement status. (See id.) He seeks $13 million in damages and an order releasing him “to
the Veterans Hospital.” (Id. at 2.)
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). Thus, 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. 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). 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. DISCUSSION
A. Tutora Has Accumulated Three Strikes.
The Court concludes that Tutora has accumulated at least three strikes for purposes of
§ 1915(g). In Tutora v. Peng, No. 10-6090 (W.D.N.Y.), Tutora filed a complaint while housed at
the Broome County Correctional Facility in Binghamton, New York. That complaint was
dismissed by order dated May 14, 2010, pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(i) and (ii) and
1915A(b)(1), because it was frivolous and failed to state a claim to relief. See Order, No. 10-6090
(W.D.N.Y. May 14, 2010), ECF No. 9. The dismissal of that case in its entirety on enumerated
statutory grounds constitutes a strike under § 1915(g).
In Tutora v. WikiLeaks, Inc., No. 10-9286 (S.D.N.Y.), Tutora filed a complaint while
housed at the Fishkill Correctional Facility in Beacon, New York. That complaint was dismissed
by order dated February 3, 2011, pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii), for failure to state a
claim. See Order, No. 10-9286 (S.D.N.Y. Feb 3, 2011), ECF No. 3. The dismissal of that case in
its entirety constitutes a second strike for purposes of § 1915(g).
In Tutora v. N.Y. State Comm’r of Corrs. & Accreditation, No. 10-206 (N.D.N.Y.), Tutora
filed a complaint while housed at the Broome County Correctional Facility in Binghamton, New
York. That complaint was dismissed by order dated February 4, 2011, pursuant to 28 U.S.C.
§§ 1915(e)(2)(B)(ii) and 1915A(b)(1), for failure to state a claim to relief. See Decision & Order,
No. 10-206 (N.D.N.Y. Feb. 4, 2011), ECF No. 14. The dismissal of that case in its entirety
constitutes a third strike for purposes of § 1915(g).
The Court has also identified at least two other cases that may be counted as strikes for the
purposes of § 1915(g). See Tutora v. Soukthavong, No. 10-332 (N.D.N.Y. Sept. 16, 2010); Tutora
v. M & T Bank, No. 10-283 (N.D.N.Y. May 26, 2010).
B. Tutora Does Not Allege Imminent Danger.
Because Tutora 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 this 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., E. Dist., 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.”).
The Court finds that Tutora’s allegations in this case do not meet the imminent danger
standard of § 1915(g). Tutora does not explicitly assert that he is in imminent danger, nor do his
allegations about purported errors in his probation proceedings rise to such a level. Because there
is no suggestion in any of his claims that he was in imminent danger of serious physical injury at
the time he brought this case, the imminent danger exception does not apply.
IV. CONCLUSION
Because Tutora 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, his motion to proceed in forma
pauperis pursuant to 28 U.S.C. § 1915(g) is denied. Should Tutora desire to litigate his claims, he
must pay the full filing fee in advance. An appropriate Order follows, which gives Tutora an
opportunity to pay the fees in the event he wishes to proceed with this case.2 If Tutora intended
to challenge the constitutionality of a state conviction or sentence and seek release from state
custody, he must file a petition for a writ of habeas corpus using the Court’s form (which would
be docketed as a new case) and withdraw this case.3
BY THE COURT:
/s/ Mitchell S. Goldberg
MITCHELL S. GOLDBERG, J.
2 If Tutora pays the filing fee, since he is a “prisoner” within the meaning of § 1915(h), the case
is still subject to statutory screening pursuant to 28 U.S.C. § 1915A.
3 To the extent Tutora challenges a state conviction and seeks release from custody, his claims
must be pursued in a habeas petition under 28 U.S.C. § 2254. See Preiser v. Rodriguez, 411 U.S.
475, 500 (1973) (“[W]hen a state prisoner is challenging the very fact or duration of his physical
imprisonment, and the relief he seeks is a determination that he is entitled to immediate release or
a speedier release from that imprisonment, his sole federal remedy is a writ of habeas corpus.”).