FLUKER v. TRANS UNION, LLC

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

ANTONIO LYNN FLUKER : CIVIL ACTION

:

v. : No. 25-0327

:

TRANS UNION, LLC :

MEMORANDUM

Judge Juan R. Sánchez April 7, 2025

Plaintiff Antonio Lynn Fluker, a pro se federal inmate at FCI Schuykill, filed a Complaint

against Trans Union, LLC (ECF No. 2), and a motion to proceed in forma pauperis (ECF No. 1).

Because Fluker 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 Fluker pay the full filing fee if he wishes to continue with the case.

I. FACTUAL ALLEGATIONS

Fluker asserts claims for money damages against TransUnion, LLC (“TransUnion”) for

violations of the Fair Credit Reporting Act (FCRA). Compl. at 7. He contends he submitted

disputes concerning allegedly fraudulent hard inquiries into his consumer credit file, but

TransUnion did not investigate them. Id. at 6. Fluker claims the inaccuracies had adverse effects

on his credit score and worthiness, and that TransUnion’s misreporting to third parties caused him

to be denied credit and the closure of an existing account. Id.

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)).

“[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, a prisoner with three prior “strikes” can

proceed in forma pauperis only if he is in imminent danger of serious physical injury.

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). 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).

III. “THREE-STRIKE” ANALYSIS

Fluker has accumulated at least three strikes for purposes of § 1915(g). In Fluker v. Ally

Fin., Inc., No. 22-12536 (E.D. Mich.), Fluker filed a complaint while housed in the Clare County

Jail in Clare, Michigan. In an order entered on December 21, 2023, the United States District

Court for the Eastern District of Michigan, Southern Division, granted the defendant’s motion

pursuant to Federal Rule of Civil Procedure 12(b)(6) and dismissed Fluker’s complaint for failure

to state a claim. See Order, No. 22-12536 (E.D. Mich. Dec. 21, 2023). The dismissal of that case

in its entirety for failure to state a claim constitutes a strike under § 1915(g).

In Jones v. Hemingway, No. 23-10842 (E.D. Mich.), Fluker filed a complaint while

incarcerated at the Federal Correctional Institution in Milan, Michigan.1 The District Court

granted the defendants’ Rule 12(b)(6) motion and dismissed that complaint. See Order, No. 23-

10842 (E.D. Mich. Jul. 31, 2024). The District Court’s order dismissing the complaint in full for

failure to state a claim constitutes a strike under § 1915(g).

Fluker filed a complaint in Fluker v. Trans Union, LLC, No. 24-12738 (E.D. Mich.), while

incarcerated at FCI Schuylkill in Minersville, Pennsylvania. The District Court entered an order

adopting a Magistrate Judge’s report recommending dismissal of the complaint under Sections

1915(e)(2)(B) and 1915A(b)(1) as frivolous and because it failed to state a claim.2 See Order, No.

1 Fluker brought this civil action with another plaintiff, Ricky L. Jones. See Complaint,

No. 23-10842 at ECF No. 1.

2 The court’s dismissal was based on reasoning that Fluker failed to establish Article III

standing for the same reasons a prior complaint of his failed. See Order, No. 24-12738 (E.D. Mich.

Jan. 7, 2025). Although a dismissal for lack of standing is not a dismissal on an enumerated

ground, the court made clear that its dismissal was for “frivolity and failure to state a claim” under

24-12738 (E.D. Mich. Jan. 7, 2025). The Court dismissed the complaint and closed the case.3 Id.

The dismissal of the case in its entirety on enumerated statutory grounds constitutes another strike.

Because Fluker has accumulated three strikes, he is “out” and can no longer proceed in

forma pauperis in any federal court unless he can show 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

the statutory screening requirements. Id. Since frivolity and failure to state a claim are enumerated

grounds that qualify a dismissal as a strike, this dismissal is appropriately counted. Cf. Ball, 726

F.3d at 460 (recognizing that when the plain text of an order dismisses a case based on an

enumerated ground, the dismissal counts as a strike even if the underlying analysis hinges on a

legal issue that otherwise would not trigger a strike). Notably, frivolity dismissals predicated on

lack of standing have been upheld in the Third Circuit. See Credico v. Unknown Off. for U.S.

Drone Strikes, 537 F. App’x 22 (3d Cir. 2013) (per curiam) (dismissing appeal of district court’s

order dismissing complaint “as frivolous pursuant to 28 U.S.C. § 1915(e)(2)(B)(i)” because

plaintiff lacked standing to pursue a generalized grievance); Awala v. Wachovia Corp., 156 F.

App'x 527, 528 (3d Cir. 2005) (per curiam) (dismissing appeal as frivolous when district court

dismissed the underlying “complaint as frivolous because Awala failed to allege that the

Defendants were acting under the color of state law and failed to establish standing to sue.”);

3 Fluker filed nearly identical Complaints in the present case and the Trans Union matter

dismissed by the District Court for the Eastern District of Michigan. Compare Complaint (ECF

No. 1) in No. 24-12738 (E.D. Mich.) with Complaint (ECF No. 2) in No. 25-0327 (E.D. Pa.).

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.”).

Fluker’s Complaint contains no allegation whatsoever of imminent danger. Indeed, his

Complaint concerns alleged violations of the Fair Credit Reporting Act through TransUnion’s

purported failure to investigate inquires on Fluker’s credit report. These allegations do not meet

the imminent danger standard of Section 1915(g). Because there is no suggestion in any of his

claims concerning imminent danger of serious physical injury at the time he brought this case, the

Court finds that the imminent danger exception does not apply.

IV. CONCLUSION

Because Fluker 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 considering

that he was not in imminent danger when he submitted this Complaint, the Court will deny Fluker’s

motion to proceed in forma pauperis pursuant to 28 U.S.C. § 1915(g). Should Fluker desire to

litigate his claims, he must pay the full filing fee in advance. An appropriate Order follows, which

gives Fluker an opportunity to pay the fees in the event he seeks to proceed with this case.

BY THE COURT:

/s/ Juan R. Sánchez

Juan R. Sánchez, J.