United States District Court, D. Delaware
Augustus Hebrew Evans, Jr. ("Plaintiff'), SBI No.
191247, an inmate at the James T. Vaughn Correctional Center,
Smyrna, Delaware, filed this complaint pursuant to 42 U.S.C.
§ 1983 alleging violations of his constitutional rights
and raising supplemental state claims. He proceeds pro
se and moves for leave to proceed in forma
pauperis. (D.I. 1).
Prison Litigation Reform Act ("PLRA") provides that
a prisoner cannot bring a new civil action or appeal a
judgment in a civil action in forma pauperis if he
has three or more times in the past, while incarcerated,
brought a civil 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, unless the prisoner
is under imminent danger of serious physical injury. See
Ball v. Famiglio, 726 F.3d 448, 455-56 (3d Cir. 2014)
(citing 28 U.S.C. § 1915(g) and discussing what
qualifies as a strike under the PLRA). A case dismissed as
frivolous prior to the enactment of the PLRA (i.e.,
April 26, 1996) is counted when applying the "three
strikes rule." Keener v. Pennsylvania Bd. of
Probation & Parole, 128 F.3d 143 (3d Cir. 1997). An
exception is made to the "three strikes rule," when
the prisoner is in imminent danger of serious physical
injury. A prisoner who is not proceeding in forma
pauperis may file a new civil action or appeal even if
that prisoner has three or more dismissals described in 28
U.S.C. § 1915(g).
while incarcerated, has filed twenty-four civil actions, and
more than three of them have been dismissed as frivolous or
for failure to state a claim upon which relief may be
granted. See, e.g., Evans v. Graves, Civ. Act. No.
17-54-RGA, D.I. 15 (D. Del. June 12, 2017) (dismissed as
frivolous); Evans v. Seaford Police Dep't, Civ.
No. 11-195-LPS (D. Del. Apr. 3, 2012) (dismissed as
frivolous); Evans v. Wright, Civ. No. 07-656-JJF,
(D. Del. Feb. 21, 2008) (dismissed for failure to state a
claim upon which relief may be granted); Evans v.
McMillan, Civ. No. 07-591-JJF (D. Del. Dec. 10, 2007)
(dismissed as frivolous and for failure to state a claim upon
which relief may be granted); Evans v. Sussex
Correctional Inst., Civ. No. 92-619-LOT (D. Del. June
13, 1993). Plaintiff concedes the PLRA applies to him. (D.I.
3 at 14; D.I. 4 at 1). Therefore, Plaintiff may not file
another civil action in forma pauperis while
incarcerated unless he is in "imminent danger of serious
physical injury" at the time of the filing of his
complaint. 28 U.S.C. § 1915(g); Abdul-Akbar v.
McKelvie, 239 F.3d 307, 311 (3d Cir. 2001) (en banc).
After reviewing his Complaint, the Court concludes that
Plaintiff has not adequately alleged that at time of the
filing of the complaint he was under imminent danger of
serious physical injury.
Complaint was filed April 15, 2019, and Plaintiff signed and
dated it April 8, 2019. (D.I. 1 at 15). The substantive
allegations of the Complaint are about nine pages. Plaintiff
states, as to the "dates of occurrence," that he
was injured on April 28, 2018, and did not receive medical
care until May 7, 2018. (D.I. 1 at 5). He further alleges
denial of an MRI three times, in June, October, and December
of 2018. (D.I. 1 at 6). He received the MRI on or about
January 17, 2019, which indicated right shoulder and rotator
cuff injury and the need for surgery. (Id.). He
states that as of April 8, 2018 [sic], he has "severe
pains not being properly/adequately addressed, treatment
delayed continually . . . and due to improper healing I have
developed abnormal function of my right arm, while
experiencing severe pain, depression, agitation, loss of
sleep etc. almost a year." (Id.). He provides a
lot of detail about events from April 29, 2018 to June 2018.
(Id. at 7-8). He describes an MRI being approved in
December 2018 and taking place on January 23, 2019.
(Id. at 10-11). He states that it should not have
taken nine months to get an MRI, and that the physical
therapy he received starting in June 2018 was ineffective.
(Id. at 11). He states that as of the filing of the
complaint, he is "not receiving proper pain management
treatments," a cushion and an elevator apparatus (which
would, I infer, reduce pain and permit sleep), and a brace
(to reduce pain). (Id. at 11).
Plaintiff separately filed a pleading captioned,
"Imminent Danger of Serious Physical Injury." (D.I.
4). It recites much the same history as the Complaint. It
states that as a result of the MRI, Plaintiff needed surgery,
and his "medication for pain was immediately
increased." The body of the pleading does not recite
anything occurring after January 23, 2019, but Plaintiff
attaches two grievances dated March 5, 2019, which document
his request to meet with the CEO of Connections CSP and a
medical administrator. (Id. at Exhs. 8 & 9).
After this case was filed, Plaintiff filed a motion for a
preliminary injunction. In it, he repeats the allegations of
the Complaint and the "Imminent Danger" pleading.
(D.I. 7 & 8). Plaintiff wrote on May 9, 2019, that he had
a medical appointment scheduled three days before with an
orthopedic doctor to discuss his injured right shoulder. He
was moved to "isolation" and then given a document
stating he had refused medical treatment. (D.I. 9). Plaintiff
has continued to send in updates. (D.I. 10, 11, 12).
statute's exception to the requirement that a
three-strikes prisoner must pay the filing fee exists for a
"prisoner. . . under imminent danger of serious physical
injury." 28 U.S.C. § 1915(g). In Abdul-Akbar v.
McKelvie, 239 F.3d 307, 312 (3d Cir. 2001) (en banc),
the Third Circuit adopted the understanding "that a
prisoner may invoke the 'imminent danger' exception
only to seek relief from a danger which is 'imminent'
at the time the complaint is filed." Here, that time,
based on the "mailbox rule," is April 8, 2019. I
understand that allegations of imminent danger must be
construed liberally in the prisoner's favor.
Nevertheless, it seems plain from the Complaint that as of
April 8, 2019, Plaintiff was not in "imminent danger of
serious physical injury." His complaint and the
"Imminent Danger" pleading are rich in their
description of events between the date of his injury and
January 23, 2019. Essentially, the gravamen of
Plaintiff's complaint is that there was great delay,
showing deliberate indifference, in getting an MRI, but that
ongoing injury was ended when he got the January 23, 2019
MRI. The description as of April 8, 2019, is that he was in
pain and had not been provided with a cushion, a brace, and
an elevator apparatus. His medication for pain had been
increased, but not by enough. In my opinion, that is not
"imminent danger of serious physical injury."
Nevertheless, I acknowledge, in Williams v. Forte,
135 Fed.Appx. 520 (3d Cir. 2005), in a case that has some
factual analogousness to this case, allegations of "lack
of medical treatment" that "put [the prisoner] in
'serious pain'" were found to be sufficient. But
that case involved "a terminal disease and a urinary
tract infection and/or a sexually transmitted disease,"
all of which existed at the time the prisoner filed his
Here, Plaintiffs allegations and the documents he submitted
indicate he is receiving continuing care. The pleadings
indicate that Plaintiff disagrees with the treatment rendered
him while the allegations and documents indicate that
Plaintiff received medical care prior to filing the
complaint. Plaintiffs allegations and the documents he
presents do not support his allegation of imminent risk or
immediate danger. Thus, Plaintiff has failed to allege
imminent danger of serious physical injury at the time he
filed the complaint. See Brown v. Beard, 492
F.Supp.2d 474, 478-79 (E.D. Pa. 2007) (prisoner was not in
imminent danger of serious physical injury as required to
proceed in forma pauperis when prisoner did not
dispute that he was receiving medical attention for high
blood pressure, low blood sugar, and high cholesterol, but
merely disputed findings and quality of treatment he was
receiving); Tripati v. Hale, 2013 WL 4054627, *2
(W.D. Pa. Aug. 12, 2013) (allegations that Defendants were
not addressing Plaintiffs chronic pain and medical issues in
the way Plaintiff believed they should indicate that the
essence of the complaint is that Plaintiff disagrees with the
quality of the medical care he is receiving which is
insufficient to satisfy the imminent danger requirement of 28
U.S.C. § 1915(g)), appeal dismissed, No. 13-3567 (3d
Cir. Mar. 26, 2014) (IFP status denied on appeal by order
dated Nov. 21, 2013, as there was no showing imminent danger
exception met when appeal filed).