United States District Court, D. Montana, Helena Division
GREGORY L. WALLACE, Plaintiff,
UNITED STATES A.A. OFFICE, B.I.A. CORRECTIONS PERSONNEL, U.S.B.O.P., MONTANA STATE PRISON INFIRMARY, Defendants.
FINDINGS AND RECOMMENDATIONS OF UNITED STATES
JOHNSTON, UNITED STATES MAGISTRATE JUDGE
Gregory Wallace, a prisoner at Montana State Prison,
proceeding without counsel, filed a motion to proceed in
forma pauperis (Doc. 1) and a lodged civil complaint. (Doc.
2.) In order to proceed in forma pauperis, Mr. Wallace must
overcome the three strikes provision of 28 U.S.C. §
1915(g). Permission to proceed in forma pauperis is
discretionary with the Court. See 28 U.S.C. §
1915(a). 28 U.S.C. § 1915(g) provides as follows:
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.
Wallace filed four civil actions which have been dismissed
for failure to state a claim. See Wallace v. N. Cheyenne
Corrections Officers, et al., CV-09-00116-BLG-RFC-CSO
(D. Mont. Judgment of dismissal filed December 30, 2009);
Wallace v. Hamm, et al., CV-12-00073-BLG-RFC (D.
Mont. Judgment of dismissal filed October 5, 2012);
Wallace v. Sioux-Assinniboine Corrections, et al.,
CV-15-00030-GF-BMM (D. Mont. Judgment of dismissal filed
November 16, 2015); and Wallace v. CIA/BIA Corrections,
et al., CV-15-00055-M-DLC (D.Mont. Judgment of dismissal
filed January 6, 2016).
Wallace has exceeded the three “strikes” allowed
by the Prison Litigation Reform Act to a prisoner attempting
to proceed in forma pauperis in a federal civil lawsuit. As
such, he cannot proceed in forma pauperis in the instant case
unless he can show that he qualifies for the “imminent
danger of serious physical injury” exception of 28
U.S.C. § 1915(g).
September 26, 2016, the Court gave Mr. Wallace an opportunity
to provide factual information to establish that he is in
“imminent danger of serious physical injury.”
(Doc. 4.) Mr. Wallace responded on October 3, 2016,
indicating that the infirmary primary care providers at
Montana State Prison where he is currently incarcerated are
negligent in treating his liver problems. (Doc. 5.)
plaintiff who has three strikes under § 1915(g) may
still proceed in forma pauperis by showing that he or she
“is under imminent danger of serious physical
injury.” 28 U.S.C. § 1915(g). This exception only
“applies if the complaint makes a plausible allegation
that the prisoner faced imminent physical danger at the time
of filing” the complaint. Andrews v.
Cervantes, 493 F.3d 1047, 1055 (9th Cir. 2007). The
complaint is the focus of the inquiry. Id.;
Abdul-Akbar v. McKelvie, 239 F.3d 307, 312 (3d Cir.
2001) (en banc).
plaintiff must show a nexus between the imminent danger
alleged in the complaint and the claims it asserts.
Pettus v. Morgenthau, 554 F.3d 293, 299 (2nd Cir.
2009). This means that the plaintiff must show that (1) the
imminent danger of serious physical injury is fairly
traceable to the unlawful conduct asserted in the complaint
and (2) a favorable judicial outcome would redress that
certain circumstances, imminent danger may arise from the
denial of medical treatment for serious or life-threatening
diseases. See Brown v. Johnson, 387 F.3d 1344, 1350
(11th Cir. 2004) (withdrawal of medications for HIV and
hepatitis); Ciapaglini v. Saini, 352 F.3d 328, 330
(7th Cir. 2003) (denial of medication for psychiatric
disorders caused plaintiff heart palpitations, chest pains
and paralysis). However, the exception does not apply where
the prisoner is receiving medical treatment but disputes the
quality of treatment he is receiving. See Ball v.
Famiglio, 726 F.3d 448, 468 (3rd Cir. 2013) (allegations
of disagreements about quality of medical care insufficient
to show imminent danger) abrogated in part on other
grounds by Coleman v. Tollefson, ___ U.S. ___, 135 S.Ct.
1759, 1763 (2015); Brown v. Beard, 492 F.Supp.2d
474, 478 (E.D.Pa. 2007).
Wallace's disagreements with prison medical personnel
about the course or adequacy of any treatment he is receiving
does not establish imminent danger. There is no allegation
that Mr. Wallace is being denied treatment. Rather he only
alleges incompetence and negligence and that medical
providers have given him too many medications and
anti-biotics. (Doc. 5.)
Court finds that Mr. Wallace was not under imminent danger of
serious physical injury at the time he filed his complaint.
As such, his motion to proceed in forma pauperis should be
Wallace is not entitled to a fourteen-day period to object.
See Minetti v. Port of Seattle, 152 F.3d 1113, 1114
(9th Cir. 1998) (per curiam). No motion for reconsideration
will be entertained.
the Court ...