Chambers v. Ebbert

• Court: District Court, M.D. Pennsylvania
• Decided: September 5, 2019
• Docket: 3:18-cv-01009
• Status: Unknown

Opinion

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA ROSCOE CHAMBERS, ) Plaintiff VS. . Case No. 3:18-cv-1009 WARDEN DAVID J. EBBERT, et al., - ) Defendants )

ORDER AND NOW, this 5th day of September, 2019, in consideration of Defendants Motion t Remove Plaintiffs In Forma Pauperis Status (Doc. No. 52) and brief in support thereof (Doc. No. 53), file in the above-captioned matter on December 21, 2018, and in further consideration of Plaintiff's respons thereto (Doc. No. 73), filed on July 2, 2019, and Defendants’ reply (Doc. No. 74), filed on July 15, 2019 IT IS HEREBY ORDERED that said motion is GRANTED. IT IS FURTHER ORDERED that Plaintiffs in forma pauperis status, conferred on June 25 2018, is hereby REVOKED and that Plaintiff must pay the entire filing fee of $400.00 by SEPTEMBER 25 2019. Failure to do so will result in the case being dismissed with prejudice for failure to prosecute withou further warning. Plaintiff Roscoe Chambers is serving a sentence of imprisonment of 360 months imposec by the United States District Court for the Southern District of Iowa. See United States v. Chambers, No. 3:12-cr-00071 (S.D. Iowa May 17, 2013), aff'd per curiam, 554 Fed. Appx. 539 (8" Cir. 2014), cert. denied, 135 S. Ct. 1018 (2015). At the time he filed the instant civil action with this court in the above-

captioned matter on May 11, 2018,! he was serving this sentence at USP Lewisburg, in Union County, Pennsylvania. He has since been reassigned to AUSP Thomson in Thomson, Illinois. He sought to proceed in forma pauperis (“IFP”), and his request was granted by Magistrate Judge Joseph F. Saporito, Jr. on June 25, 2018. After the filing of several motions by the parties, Defendants sought to revoke Plaintiffs IFP status on December 21, 2018, contending that he had three prior “strikes” under the Prisoner Litigation Reform Act, 28 U.S.C. § 1915(g) (‘PLRA”), and that Plaintiff had failed to establish that he was under imminent danger of serious physical injury. The parties do not dispute the fact that Plaintiff had three prior “strikes” under the PLRA- actions brought by him while incarcerated that were dismissed on the grounds that they were frivolous malicious, or failed to state a claim upon which relief may be granted. Indeed, the record reflects that court: as of the time he filed his complaint, had dismissed at least three matters Plaintiff had previously filed a frivolous or for failure to state a claim. See Chambers v. Conard et al., No. 4:13-cv-186 (S.D. Iowa May 1€ 2013); Chambers v. Conard et al., 547 Fed. Appx. 807 (2013); Chambers v. Sarcone, No. 4:17-cv-0432 2017 WL 8792712 (S.D. Iowa Dec. 12, 2017). Subsequently, Plaintiff has had an additional actio: dismissed as frivolous that he had filed in the Northern District of Illinois. See Chambers v. Schmidts, Ne 18-C-50242 (N.D. Ill. Aug. 14, 2018). There is no question, then, that the PLRA’s three-strike provisio applies. The issue is whether the “imminent danger” exception to the PLRA applies as well. Under the PLRA, a prisoner litigant may proceed IFP, even if he or she has amassed three o more strikes under the Act, if the prisoner can make a showing that he or she is under imminent danger o serious physical injury. Plaintiff contends that he was under imminent danger of serious physical injur

} The action was brought pursuant to Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971), and seeks monetary and injunctive relief. 2 .

because of threats and false reports being made regarding him by personnel at USP Lewisburg. Whil Plaintiff now adds claims regarding the poisoning of his food and later unrelated threats, these allege dangers significantly postdate the filing of the complaint in this case and therefore do not establish the danger was imminent at the time the complaint was filed. See Abdul-Akbar v. McKelvie, 239 F.3d 307 312 (3d Cir. 2001).? A prisoner litigant claiming to be in imminent danger of serious physical harm “must mak specific and credible allegations to that effect.” Ball v. Famiglio, 726 F.3d 448, 470 (3d Cir. 2013 abrogated on other grounds by Parker v. Montgomery Cty. Corr. Facility/Business Office Mer., 870 F.3. 144, 150 n.9 (3d Cir. 2017) (internal quotations omitted). “Imminent dangers are those dangers which ar about to occur at any moment or are impending.” See Abdul-Akbar, 239 F.3d at 315. The danger allege here simply does not meet these standards. In seeking IFP status, Plaintiff alleged that he previously ha received a few vague threats of a sexual nature, that he had been subject to false reports, which he claim affected a good time credit, and that he had been denied contact with his family. (Doc. No. 8). Th allegations regarding the threats are not only vague, they do not establish any impending danger but rathe refer to discrete prior acts. The false reports and family contact allegations do not allege or involve any ris of serious physical harm, Plaintiff also averred that he feared for his life and safety and that the staff woul kill him if they found out that he filed his action (Doc. No. 2), but this claim is very broad and vague, an Plaintiff does not try to substantiate his allegations in any way. Such vague and conclusory claims ar insufficient to meet the imminent danger standard. See Ball, 726 F.3d at 468.

2 The Court also notes that Plaintiff is no longer designated to or confined at USP Lewisburg. Accordingly, any ongoing claims of actions being taken against him by personnel at that facility would be moot in any event.

Accordingly, Plaintiff has not established that he is under imminent danger of serio physical injury, and therefore, he is not entitled to proceed IFP and must pay the applicable filing fee pursue this action. If Plaintiff does not pay this fee, his case will be dismissed with prejudice for failure prosecute.

Alan N. Bloch United States District Judge

ecf: Counsel of record ce: Roscoe Chambers, Reg. No. 13495-030 □ AUSP Thomson . U.S. Penitentiary ~ P.O. Box 1002 Thomson, IL, 61285