                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-27-2005

Williams v. Forte
Precedential or Non-Precedential: Non-Precedential

Docket No. 04-2071




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Recommended Citation
"Williams v. Forte" (2005). 2005 Decisions. Paper 1121.
http://digitalcommons.law.villanova.edu/thirdcircuit_2005/1121


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                                                     NOT PRECEDENTIAL

                  UNITED STATES COURT OF APPEALS
                       FOR THE THIRD CIRCUIT

                                NO. 04-2071
                             ________________

                           ANTHONY WILLIAMS,

                                      Appellant

                                      v.

         LT. FORTE, (SCIP); JOAN A. DELIE, Health Care Administrative
       (SCIP); JOSEPH GERAGI, Medical Staff (SCIP); DR. GINCHEREAU,
            Medical Director (SCIP); DIANE MANSON, R.N. Supervisor
      (SCIP); WILLIAM STICKMAN, Superintendent (SCIP); JOE ECSEDY,
         C/O I (SCIP); DAVID GOOD, Deputy Superintendent PRC (SCIP);
    CHARLES J. SIMSOM, Captain (SCIP); THOMAS E. MCCONNELL, Captain
           (SCIP); BILL CARNUCHE, Counselor (SCIP); MIKE ZAKEN,
            Unit Manager PRC Member (SCIP); DONALD WILLIASON,
               Coordinator Diagnostic Classification Bureau of Inmate
          Services PA Dept. of Corrections; THOMAS JAMES, Grievances
              and Appeals Officer; H. CLIFFORD O'HARA, Office of
             Professional Responsibility Director at Dept. of Corrections

                 ____________________________________

               On Appeal From the United States District Court
                  For the Western District of Pennsylvania
                          (D.C. Civ. No. 04-00012)
                District Judge: Honorable Gary L. Lancaster
               _______________________________________

               Submitted Under Third Circuit LAR 34.1(a)
                            May 26, 2005
Before: NYGAARD, VAN ANTWERPEN AND STAPLETON, CIRCUIT JUDGES

                           (Filed May 27, 2005 )
                               _______________________

                                       OPINION
                               _______________________


PER CURIAM

       Pro se Appellant, Anthony Williams, who has three strikes under the Prison

Litigation Reform Act, moved to proceed in forma pauperis in the District Court. The

District Court denied his motion pursuant to 28 U.S.C. § 1915(g) and dismissed his

complaint for failure to pay the filing fee, approving and adopting the recommendation of

a Magistrate Judge, who concluded that Williams did not allege that he was in imminent

danger of serious physical injury. Appellant appeals.

       The decision of the District Court will be reversed. Williams, who concedes that

he has three strikes under the Prison Litigation Reform Act, may not bring a complaint in

forma pauperis unless he was, at the time that he filed his complaint, under imminent

danger of serious physical injury. See 28 U.S.C. 1915(g) (2004); Abdul-Akbar v.

McKelvie, 239 F.3d 307, 313 (3d Cir. 2001) (en banc). His allegations of imminent

danger must be construed liberally in his favor. See Gibbs v. Cross, 160 F.3d 962, 966

(3d Cir. 1998). The Magistrate Judge described Williams’ allegations of an injury in

August to September 2003 (months before he filed his Complaint in November 2003), his

November 2003 report to his counselor of fear for his life about his proposed transfer to a

mental hospital, and his complaints about cell assignments, mail issues, and actions



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related to his grievances and the potential transfer. See Report & Recommendation at 5.

In addition to these allegations, at least some of which do not suggest imminent danger of

serious physical injury, the Magistrate Judge mentioned but did not explain Williams’

allegations about lack of adequate medical treatment. See id. at 2. However, the

allegations that were not fully considered are those allegations that indicate that Williams

was in imminent danger of serious physical injury at the time he filed his Complaint.

Williams alleged, in a claim that he continues to press on appeal, a lack of medical

treatment over time for a terminal disease and a urinary tract infection and/or a sexually

transmitted disease that put him in “serious pain” at the time he filed his Complaint and at

present. See Complaint at ¶¶ 10-18. These allegations satisfy the threshold criterion of

the imminent danger exception of 28 U.S.C. § 1915(g). See Brown v. Johnson, 387 F.3d

1344, 1350 (11th Cir. 2004); McAlphin v. Toney, 281 F.3d 709, 710 (8th Cir. 2002).

Therefore, the District Court’s order will be reversed, Williams will be permitted to

proceed in forma pauperis in the District Court, and this matter will be remanded for

further proceedings. See Gibbs, 160 F.3d at 965, 967. See also Gibbs v. Roman, 116

F.3d 83, 86-7 (3d Cir. 1997), overruled on other grounds by Abdul-Akbar v. McKelvie,

239 F.3d 307, 311 (3d Cir. 2001) (en banc).




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