Dawn Ball v. Lt. Hummel

BLD-373 UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

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No. 12-3538

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DAWN MARIE BALL,

Appellant

v.

LT. HUMMEL; SUPT. GIROUX; TROY EDWARDS; MAJOR FRANZ;

CAPT. KERSHNER; CAPT. WALTMAN; CAPT. CURHAM; DEPUTY SMITH;

DEPUTY NICOLAS; C/O KURTZ; C/O ECKROTH; C/O HOWE; NURSE BOYER;

JANE DOES 3 FEMALE C/O'S; JOHN DOES 3 MALE C/O'S

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On Appeal from the United States District Court

for the Middle District of Pennsylvania

(D.C. Civil No. 12-cv-00814)

District Judge: Honorable Yvette Kane

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Submitted for Possible Dismissal

Pursuant to 28 U.S.C. § 1915(e)(2)(B) or Summary Action

Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6

September 5, 2014

Before: AMBRO, CHAGARES and VANASKIE, Circuit Judges

(Opinion filed: September 17, 2014)

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OPINION

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PER CURIAM

Dawn Ball appeals from an order of the United States District Court for the

Middle District of Pennsylvania, which revoked her in forma pauperis (“IFP”) status.

Ball seeks leave to proceed IFP on appeal. We will grant the motion to proceed IFP,1 but

we will affirm the District Court’s order.

The District Court granted the Defendants’ motion to revoke Ball’s IFP status,

finding that she had the following three “strikes” at the time she filed her complaint (in

May 2012): Ball v. Butts, No. 1:11-cv-1068 (M.D. Pa. June 14, 2011) (dismissed

because defendant was entitled to absolute immunity), Ball v. Hartman, No. 1:09-cv-844

(M.D. Pa. Feb. 16, 2010) (dismissed for failure to state a claim), and Ball v. Butts, 445 F.

App’x 457, 475 (3d Cir. Sept. 21, 2011) (not precedential) (dismissed as frivolous). The

District Court did not have the benefit of our opinion in Ball v. Famiglio, 726 F.3d 448

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Ball qualifies financially to proceed IFP, but because she has accumulated “three strikes” for

purposes of 28 U.S.C. § 1915(g), see Ball v. Famiglio, 726 F.3d 448, 451 (3d Cir. 2013), she

may not proceed IFP unless she can show “imminent danger of serious physical injury” when

she filed this appeal. 28 U.S.C. § 1915(g); Abdul-Akbar v. McKelvie, 239 F.3d 307, 312 (3d

Cir. 2001) (en banc). To fulfill the “imminent danger” requirements, she must demonstrate an

adequate nexus between the claims [s]he seeks to pursue and the imminent danger [s]he alleges.”

See Pettus v. Morgenthau, 554 F.3d 293, 296 (2d Cir. 2009). Here, Ball’s complaint alleged

excessive force used during cell extraction on January 10, 2012, despite her alleged failure to

resist or disobey orders. She alleged that the extraction involved use of an electric body

immobilizer device (EBID), causing burns and continuing headaches, nausea and blurred vision,

and sexual assault by female guards in front of male guards. The imminent danger motion on

appeal similarly describes being beaten and sexually assaulted by guards, with threats to harm

her further the next time. See Imminent Danger Motion (stating that guards “are threatening my

life & my family’s lives & tell me they will beat me up again, but worse this time.”); Chavis v.

Chappius, 618 F.3d 162, 170 (2d Cir. 2010) (“An allegation of a recent brutal beating, combined

with three separate threatening incidents, some of which involved officers who purportedly

participated in that beating, is clearly the sort of ongoing pattern of acts that satisfies the

imminent danger exception.”). We find that these allegations concern serious physical injury,

and that (in contrast to her allegations in a number of her recent appeals) she has shown a

sufficient nexus between the allegations of the complaint and the allegations of imminent danger.

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(3d Cir. 2013), in which we determined that a dismissal because a defendant is immune

from suit does not constitute a “strike.” See id., 726 F.3d at 466 (“The District Court’s

dismissal of [Ball v.] Butts [No. 11-cv-1068] does not count as a strike because it was

based on immunity.”). However, at the time Ball filed the complaint in this case, she had

incurred a third strike; namely, the dismissal of Ball v. SCI Muncy, No. 08-cv-0391

(M.D. Pa.), on a motion filed pursuant to Fed. R. Civ. P. 12(b)(6), because Ball had failed

to exhaust administrative remedies. See Ball, 726 F.3d at 466. Ball thus had three strikes

at the time she filed the complaint here.

The Report and Recommendation, adopted by the District Court, also evaluated

whether Ball was under “imminent danger” at the time she filed her complaint. The

Court noted that four months had elapsed between the cell extraction during which she

alleged that she was physically harmed and the filing of the complaint. Further, the

District Court noted that Ball’s complaint did not contain any allegations that she was

under imminent danger of serious physical injury, as opposed to having suffered past

injury. Ball did not object to the Report and Recommendation, nor did she supplement

her IFP application to attempt to meet the requirements of § 1915(g), as she was invited

to do by the District Court. Instead, she simply appealed the District Court’s order.

We agree that Ball did not demonstrate that she was in imminent danger of serious

physical injury at the time she filed the complaint. It may seem odd that we have granted

Ball’s motion to proceed IFP on appeal and yet affirm the District Court’s revocation of

her IFP status. But because Ball, at the time of her appeal, alleged renewed threats from

the guards that were the subject of the allegations of her complaint, we find that she

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satisfied the requirements of § 1915(g) here. The complaint, in contrast, lacked any such

allegations of renewed threats.

For the foregoing reasons, we will affirm the District Court’s order.

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