                                                                                                                           Opinions of the United
2009 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-21-2009

Brown v. City of Phila
Precedential or Non-Precedential: Non-Precedential

Docket No. 08-2419




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Recommended Citation
"Brown v. City of Phila" (2009). 2009 Decisions. Paper 1340.
http://digitalcommons.law.villanova.edu/thirdcircuit_2009/1340


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ALD-173
                                                             NOT PRECEDENTIAL

                     UNITED STATES COURT OF APPEALS
                          FOR THE THIRD CIRCUIT


                                    No. 08-2419


                             ALEXANDER BROWN,
                                                        Appellant

                                         v.

  CITY OF PHILADELPHIA; STATE OF PENNSYLVANIA; COMMISSIONER
 SYLVESTER JOHNSON; OFFICER HECTOR RIVERA; C. YOUNG; SERGEANT
 WANDA DADE; OFFICER PATTERSON; DETENTION OFFICER CHAMPION;
 WHITE MALE SERGEANT AND BLACK MALE OFFICER, PLAINTIFF NAMES
        DO NOT KNOW AT THIS TIME; SEPTA COP; SEPTA POLICE
 SUPERINTENDENT; OFFICER CROSS; OFFICER BARONE; OFFICER JAVIOR
CURRY; POLICE IAD SQT. CHESTER O'NELLI; POLICE OFFICER GONZALEUS;
                 MALE BLACK NURSE AT 8TH RACE


                  On Appeal from the United States District Court
                     for the Eastern District of Pennsylvania
                      (D.C. Civil Action No. 2-07-cv-04971)
                    District Judge: Honorable Joel H. Slomsky


                 Submitted Pursuant to 28 U.S.C. § 1915(e)(2)(B) or
  for Possible Summary Action Pursuant to Third Circuit L.A.R. 27.4 and I.O.P. 10.6
                                  April 30, 2009

            Before: SLOVITER, FUENTES and JORDAN, Circuit Judges

                           (Opinion filed: May 21, 2009)


                                     OPINION
PER CURIAM

       Appellant Alexander Brown seeks review of the District Court’s order entered

May 1, 2008, denying him leave to proceed in forma pauperis, denying his pending

motions as moot, and statistically closing his case. For the following reasons, we will

affirm the District Court’s order.

                                              I.

       In November 2007, Brown initiated a pro se civil action pursuant to 42 U.S.C.

§ 1983, against the City of Philadelphia and numerous public officials and institutions.1

He claimed violations of his constitutional rights arising from arrests by Philadelphia and

SEPTA police officers and his detention in the Philadelphia prison system. Brown

claimed he was in imminent danger of being seriously injured physically and

psychologically, because prison officials allegedly were engaging in “nefarious” acts of

“reprisals, retaliation, and retribution” against him in response to his efforts to pursue


   1
     Brown filed a series of substantially similar cases in District Court at around the
same time, which were consolidated before the Honorable Joel H. Slomsky; this case was
not included in the consolidation because it was statistically closed. See E.D. Pa. Civ.
Action Nos. 05-4160, 06-2496, 06-5408, 08-3369. In February 2009, Judge Slomsky
issued a show cause order directing the parties in the consolidated cases to address
whether: (1) Brown’s cases should be dismissed as frivolous, malicious, or for failure to
state a claim; (2) a pre-filing injunction should be issued to bar Brown from filing future
civil actions absent permission of the court; (3) Brown should be permitted to proceed
IFP; and (4) whether Brown is in imminent danger of serious physical injury. Judge
Slomsky held a show cause hearing, and on April 15, 2009, entered an order denying all
outstanding motions with prejudice, dismissing all claims with prejudice, statistically
closing the matters, and enjoining Brown from filing further actions absent permission of
the District Court. See Brown v. City of Phila., et al., 2009 WL 1011966 (E.D. Pa. April
14, 2009). Brown has appealed the order. See C.A. No. 09-2251.
                                              2
civil litigation. Among other things, Brown complained that, while housed in quarantine

from November 2007 through February 2008, prison guards threatened his life, placed

feces and urine in his cell, tampered with and contaminated his food, denied him heat and

running water, and denied him medical treatment. Brown also claimed that prison

officials encouraged other inmates to attack and threaten him, and failed to adequately

protect him from inmate violence.

       Brown moved to proceed in forma pauperis (“IFP”). Generally, a prisoner may not

be granted IFP status if, on three or more occasions, he brought an action that was

dismissed as frivolous. 28 U.S.C. § 1915(g). The District Court determined that Brown

(also known as John Hooks) was subject to § 1915(g). See Hooks v. Cropper, et al., Civ.

A. No. 01-05902 (E.D. Pa.); Hooks v. Johnson, et al., Civ. A. No. 01-05901 (E.D. Pa.);

Hooks v. City of Philadlephia et al., Civ. A. No. 98-01059 (E.D. Pa.); and Hooks v. City

of Phila. Public Defender, Civ. A. No. 97-06900 (E.D. Pa.). However, the “three strikes”

rule does not apply if “the prisoner is under imminent danger of serious physical injury”

at the time his complaint is filed. 28 U.S.C. § 1915(g); Abdul-Akbar v. McKelvie, 239

F.3d 307, 312 (3d Cir. 2001). Thus, Brown would be permitted to proceed IFP only if

“under imminent danger of serious physical injury.” 28 U.S.C. § 1915(g).

       The District Court concluded that Brown did not face “imminent danger of serious

physical injury” for purposes of § 1915(g). It held that Brown’s placement in quarantine

“effectively shielded him from ‘serious physical injury,’” and that his inadequate medical

treatment claims “merely allege[ ] that the medical staff declined to provide the type of

                                             3
treatment he wants for pre-existing injuries.” The District Court therefore entered an

order denying the IFP motion, denying all other pending motions, and closing Brown’s

case statistically. Brown timely appealed.

                                               II.

       We exercise plenary review over issues of statutory construction and

interpretation. See Gibbs v. Roman, 116 F.3d 83, 85 (3d Cir. 1997), overruled on other

grounds by Abdul-Akbar v. McKelvie, 239 F.3d 307, 311 (3d Cir. 2001) (en banc);

Moody v. Security Pac. Bus. Credit, Inc., 971 F.2d 1056, 1063 (3d Cir. 1992).

       A court need not accept all allegations of injury made pursuant to § 1915(g). To

the contrary, a court may discredit “factual claims of imminent danger that are ‘clearly

baseless,’ i.e., allegations that are fantastic or delusional and rise to the level of the

‘irrational or wholly incredible.’” Gibbs v. Cross, 160 F.3d 962, 967 (3d Cir. 1998)

(citing Denton v. Hernandez, 504 U.S. 25, 33 (1992)). The Supreme Court has directed

that, in assessing a case under 28 U.S.C. § 1915, we are not required to accept without

question the truth of the plaintiff’s allegations. See Denton, 504 U.S. at 32. Rather, we

may be guided by judicially noticeable facts in determining whether the allegations are

baseless or wholly incredible. See id.

       We take judicial notice of the fact that Brown has demonstrated a pattern of

abusing judicial process by repeatedly filing frivolous actions. Over the past decade,

Brown has filed more than thirty other pro se civil actions in district court. See Brown v.

City of Phila., et al., 2009 WL 1011966 at *3 (E.D. Pa. April 14, 2009) (listing numerous

                                                4
previously-filed actions). No court has yet found merit in any of Brown’s allegations.

       Brown has managed to evade the three strikes rule and continue to pursue filings

by repeatedly invoking the imminent danger exception under § 1915(g). We have

reviewed the pleadings in this matter, as well as those filed in several of Brown’s other

actions, and have confirmed that they are all substantially similar, setting forth myriad

vague, generalized, and unsupported claims. Accordingly, we conclude that the District

Court did not err in declining to credit Brown’s current allegations, see Cross, 160 F.3d at

966-67, and will affirm the order dismissing Brown’s complaint pursuant to § 1915(g).

                                            III.

       Brown has filed a motion seeking recusal of Judge Buckwalter. We construe the

motion as seeking relief in the nature of a writ of mandamus or prohibition pursuant to 28

U.S.C. § 1651. Because the District Court action was reassigned to Judge Slomsky and

Judge Buckwalter is no longer presiding over his case, Brown’s request for mandamus

relief is denied as moot. Brown’s motions seeking a protection order are denied.




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