Brown v. Beard

• Decision Date: 27 June 2007
• Docket Number: Civil Action No 06-5405.
• Citation: 492 F.Supp.2d 474
• Parties: Alton D. BROWN v. Jeffrey BEARD, et al.
• Court: U.S. District Court — Eastern District of Pennsylvania

492 F.Supp.2d 474

Alton D. BROWN v. Jeffrey BEARD, et al.

Civil Action No 06-5405.

United States District Court, E.D. Pennsylvania.

June 27, 2007.

Alton D. Brown, Graterford, PA, Pro se.

Randall J. Henzes, Office of Attorney General, Philadelphia, PA, Tracey A. Campbell, Karen Elizabeth O'Brien, White & Williams LLP, Berwyn, PA, for Defendants.

MEMORANDUM

EDUARDO C. ROBRENO, District Judge.

Before the Court is Defendants' motion to vacate the Court's order granting Plaintiffs motion to proceed in forma pauperis (doc. no. 24). A decision on this motion requires the Court to determine what allegations a prisoner must make, in the denial of medical care context, to sufficiently allege that he is "under imminent danger of serious physical injury," thereby allowing him to proceed in forma pauperis ("IFP") pursuant to 28 U.S.C. § 1915(g), notwithstanding the fact that he already has had three prior actions dismissed as frivolous. Because the Court determines that the plaintiff in this case, Alton D. Brown, has not sufficiently alleged that he is in imminent danger of serious physical injury, the Court will vacate its earlier order granting him IFP status.

I. BACKGROUND

Brown initiated this action on December 8, 2006, with a motion for leave to proceed with IFP status (doc. no. 1). The Court denied Brown's motion, because he failed to file a certified copy of his prisoner account statement for the six-month period prior to the filing of his complaint on December 8, 2006, pursuant to 28 U.S.C. § 1915 (doc. no. 2). Brown applied for IFP status again, together with a prisoner account statement (doc. no. 3). On December 26, 2006, based on Brown's account statement, the Court assessed an $8.33 initial filing fee and informed Brown that he had twenty (20) days to decide whether he wanted to proceed with this case (doc no. 5).¹ Brown timely expressed his intent to proceed (doc. no. 6) and soon thereafter, filed a motion for a temporary restraining order and preliminary injunction (doc. no. 7). The Court then entered an order granting Brown's motion to proceed with IFP status (doc. no. 8).

Defendants have now moved to vacate the order allowing Brown to proceed IFP. Because the Court concludes that Brown already has three strikes against him and has not adequately alleged that he is under imminent danger of serious physical injury, the Court will grant Defendants' motion.

II. DISCUSSION

Whether Brown is entitled to IFP status is governed by 28 U.S.C. § 1915(g). Section 1915(g) 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 occasions, while incarcerated or detained in any facility, brought an action on 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). This section was enacted as part of the Prison Litigation Reform Act ("PLRA"), which Congress passed "largely in response to concerns about the heavy volume of frivolous prisoner litigation in the federal courts." Abdul-Akbar v. McKelvie, 239 F.3d 307, 312 (3d Cir.2001) (citing 141 Cong. Rec. S14408-01, S14413 (daily ed. Sept. 27, 1995)). In enacting the PLRA, "Congress concluded that the large number of meritless prisoner claims was caused by the fact that prisoners easily obtained IFP status and hence were not subject to the same economic disincentives to filing meritless cases that face other civil litigants." Id. (citing 141 Cong. Rec. S7498-01, S7526 (daily ed. May 25, 1995)). To curb this trend, the PLRA instituted a number of reforms in the handling of prisoner litigation. Id. One of these reforms was § 1915(g), which "limits a prisoner's ability to proceed IFP if the prisoner abuses the judicial system by filing frivolous actions [on three or more prior occasions]. Prisoners may avoid the limitation in this provision, however, if they are under `imminent danger of imminent physical injury'" at the time the complaint was filed. Id. (quoting 28 U.S.C. § 1915(g)).

There is no question that Brown has already run afoul of section 1915(g)'s three-strikes-and-you're-out policy. This Court's own research reveals numerous other cases dismissed against Brown for being frivolous, brought in bad faith, or failing to state a claim. See, e.g., Brown v. Brierton, et al., No. 91-CV-471 (M.D.Fla. Oct. 17, 1991) (Black, J.) (doc. no. 6) (dismissing prisoner rights case for abuse of judicial process); Brown v. Brierton, No. 92-2030 (11th Cir. Feb. 10, 1992) (denying appeal of prisoner civil rights case because appeal was not taken in good faith under Rule 24(a) of the Federal Rules of Appellate Procedure since the case was dismissed without prejudice for Brown's abuse of the judicial process); Brown v. Barton, et al., No. 93-CV-45 (M.D.Fla. Sep. 12, 1994) (Moore J.) (denying appeal of prisoner civil rights case because not taken in good faith); Brown v. Federal Laboratories, Inc., No. 89-507 (M.D.Fla. 1989) (dismissing claim as frivolous); Brown v. Blaine, 833 A.2d 1166 (Pa. Commw.Ct.2003) (affirming dismissal of certain claims for failure to state a claim upon which relief could be granted); Brown v. Johnson, No. 02-4891 (Pa. Commw. Ct. Allegheny Cty. Apr. 1, 2002) (dismissing claim as frivolous); Brown v. Ashmun, et al., No. 02-5523 (Pa. Commw. Ct. Allegheny Cty. Apr. 4, 2002) (dismissing libel claim as frivolous); Brown v. James, No. 02-9037 (Pa. Commw. Ct. Allegheny Cty. June 25, 2002) (dismissing complaint for failure to state a claim upon which relief may be granted); Brown v. Beard, et al., No. 02-9575 (Pa. Commw. Ct. Allegheny Cty. May 17, 2002) (dismissing habeas petition on the pleadings); Brown v. Pa. Bd. of Corr, et al., No. 02-10332 (Pa. Commw. Ct. Allegheny Cty. Aug. 26, 2002) (dismissing claim as frivolous).

Numerous courts, including the Third Circuit, have denied Brown IFP status already because they found that Brown already had three strikes against him. E.g. Brown v. Blaine, et al., No. 04-4618 (3d Cir. Aug. 19, 2005)(denying Brown IFP status because he had three strikes and had not adequately alleged that he was under imminent danger of serious physical injury pursuant to 28 U.S.C. Section 1915(g)); Brown v. Blaine, No. 03-2439 (3d Cir. Mar. 18, 2004) (same); Brown v. Montgomery County, No. 04-5729, 2006 WL 1997448, at *1, 2006 U.S. Dist. LEXIS 48288, at *3 (E.D.Pa. July 7, 2006) (dismissing Brown's complaint under three strikes rule and noting Brown's "litigious background"); Brown v. P.A. Dep't of Corr., 913 A.2d 301, 306 (Pa. Commw.Ct.2006) (dismissing Brown's suit for three previous strikes after finding that he "is a well-qualified abusive litigator"); Brown v. James, 822 A.2d 128, 130 (Pa.Commw.Ct.2003) (denying request to proceed IFP because Brown had three strikes against him).

Undeterred by his previous failures, however, Brown has found a tactic to circumvent section 1915(g) that has succeeded at least once: exploiting the exception for allegations of imminent danger of bodily harm. For example, in Brown v. Beard, et al., No. 04-1906, 2006 WL 891137, 2006 U.S. Dist. LEXIS 15460 (W.D.Pa. Mar. 31, 2006), Brown alleged, inter alia., that a prison was denying him a medically appropriate diet and proper medical treatment for a knee injury. He was granted IFP status only as to those claims. (No. 04-1906, doc. no. 5). On summary judgment, the Court adopted the Report and Recommendation of the Magistrate Judge, who had found that "there was no merit to the plaintiff's allegations that he had been subjected to substandard food service" and also determined that his claims regarding improper medical treatment were similarly meritless. Rep. & Rec. at 4 (doc. no. 139) (emphasis added). In fact, the Magistrate Judge found that "[w]hat the record does demonstrate [] is that the plaintiff has received the appropriate diet prescribed for all inmates as well as a diet which is appropriate for an individual with Hepatitis C...." Id. at 6.

Brown's allegations of imminent bodily harm in the instant case are similar to his allegations in the prior case, which were ultimately found to be meritless. Now, however, Brown adds the new allegation that he suffers from various medical conditions, for which he is not being adequately diagnosed and treated, which could contribute to heart disease and thus ultimately his death. The Third Circuit has recognized, in a non-precedential case, that the denial of appropriate medical care may, under certain circumstances, present an "imminent danger" sufficient to create an exception to the three-strikes policy and allow a prisoner to proceed IFP. See, e.g., Williams v. Forte, 135 Fed.Appx. 520, 520 (3d Cir.2005) (granting IFP status to prisoner who alleged a lack of medical treatment). Here, however, Brown's allegations, on their face, show that Brown is not in imminent danger of serious physical injury.

Brown's allegations are summarized as follows. Brown alleges that he suffered a heart attack in December 2005. Pls.' Mot. to Reconsider at 15 (doc. no. 27). He alleges that, since then, he has been examined by medical personnel numerous times. One examination included the use of an electrocardiogram ("EKG") to test for any irregularities in his heart beat. According to Brown, medical personnel concluded that his EKG showed no "clinical significance," but Brown complains that "nothing in the records supports the claim that the EKG showed no clinical significance" and believes, instead, that he has an irregular heartbeat, based on his own reading of the EKG and speculation about its significance Id. at 12, 15-16A. Brown also describes the results of six recent blood cholesterol tests, which indicate that he has high cholesterol, but then complains that some of the pages of the reports of...