BLD-373             UNITED STATES COURT OF APPEALS
                        FOR THE THIRD CIRCUIT
                              ___________

                                 No. 12-3538
                                 ___________

                            DAWN MARIE BALL,

                                                 Appellant

                                      v.

     LT. HUMMEL; SUPT. GIROUX; TROY EDWARDS; MAJOR FRANZ;
  CAPT. KERSHNER; CAPT. WALTMAN; CAPT. CURHAM; DEPUTY SMITH;
 DEPUTY NICOLAS; C/O KURTZ; C/O ECKROTH; C/O HOWE; NURSE BOYER;
          JANE DOES 3 FEMALE C/O'S; JOHN DOES 3 MALE C/O'S
                ____________________________________

                On Appeal from the United States District Court
                    for the Middle District of Pennsylvania
                         (D.C. Civil No. 12-cv-00814)
                   District Judge: Honorable Yvette Kane
                 ____________________________________

                         Submitted for Possible Dismissal
            Pursuant to 28 U.S.C. § 1915(e)(2)(B) or Summary Action
               Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
                               September 5, 2014

          Before: AMBRO, CHAGARES and VANASKIE, Circuit Judges

                      (Opinion filed: September 17, 2014)
                                   _________

                                  OPINION
                                  _________
PER CURIAM

       Dawn Ball appeals from an order of the United States District Court for the

Middle District of Pennsylvania, which revoked her in forma pauperis (“IFP”) status.

Ball seeks leave to proceed IFP on appeal. We will grant the motion to proceed IFP,1 but

we will affirm the District Court’s order.

       The District Court granted the Defendants’ motion to revoke Ball’s IFP status,

finding that she had the following three “strikes” at the time she filed her complaint (in

May 2012): Ball v. Butts, No. 1:11-cv-1068 (M.D. Pa. June 14, 2011) (dismissed

because defendant was entitled to absolute immunity), Ball v. Hartman, No. 1:09-cv-844

(M.D. Pa. Feb. 16, 2010) (dismissed for failure to state a claim), and Ball v. Butts, 445 F.

App’x 457, 475 (3d Cir. Sept. 21, 2011) (not precedential) (dismissed as frivolous). The

District Court did not have the benefit of our opinion in Ball v. Famiglio, 726 F.3d 448
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  Ball qualifies financially to proceed IFP, but because she has accumulated “three strikes” for
purposes of 28 U.S.C. § 1915(g), see Ball v. Famiglio, 726 F.3d 448, 451 (3d Cir. 2013), she
may not proceed IFP unless she can show “imminent danger of serious physical injury” when
she filed this appeal. 28 U.S.C. § 1915(g); Abdul-Akbar v. McKelvie, 239 F.3d 307, 312 (3d
Cir. 2001) (en banc). To fulfill the “imminent danger” requirements, she must demonstrate an
adequate nexus between the claims [s]he seeks to pursue and the imminent danger [s]he alleges.”
See Pettus v. Morgenthau, 554 F.3d 293, 296 (2d Cir. 2009). Here, Ball’s complaint alleged
excessive force used during cell extraction on January 10, 2012, despite her alleged failure to
resist or disobey orders. She alleged that the extraction involved use of an electric body
immobilizer device (EBID), causing burns and continuing headaches, nausea and blurred vision,
and sexual assault by female guards in front of male guards. The imminent danger motion on
appeal similarly describes being beaten and sexually assaulted by guards, with threats to harm
her further the next time. See Imminent Danger Motion (stating that guards “are threatening my
life & my family’s lives & tell me they will beat me up again, but worse this time.”); Chavis v.
Chappius, 618 F.3d 162, 170 (2d Cir. 2010) (“An allegation of a recent brutal beating, combined
with three separate threatening incidents, some of which involved officers who purportedly
participated in that beating, is clearly the sort of ongoing pattern of acts that satisfies the
imminent danger exception.”). We find that these allegations concern serious physical injury,
and that (in contrast to her allegations in a number of her recent appeals) she has shown a
sufficient nexus between the allegations of the complaint and the allegations of imminent danger.


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(3d Cir. 2013), in which we determined that a dismissal because a defendant is immune

from suit does not constitute a “strike.” See id., 726 F.3d at 466 (“The District Court’s

dismissal of [Ball v.] Butts [No. 11-cv-1068] does not count as a strike because it was

based on immunity.”). However, at the time Ball filed the complaint in this case, she had

incurred a third strike; namely, the dismissal of Ball v. SCI Muncy, No. 08-cv-0391

(M.D. Pa.), on a motion filed pursuant to Fed. R. Civ. P. 12(b)(6), because Ball had failed

to exhaust administrative remedies. See Ball, 726 F.3d at 466. Ball thus had three strikes

at the time she filed the complaint here.

       The Report and Recommendation, adopted by the District Court, also evaluated

whether Ball was under “imminent danger” at the time she filed her complaint. The

Court noted that four months had elapsed between the cell extraction during which she

alleged that she was physically harmed and the filing of the complaint. Further, the

District Court noted that Ball’s complaint did not contain any allegations that she was

under imminent danger of serious physical injury, as opposed to having suffered past

injury. Ball did not object to the Report and Recommendation, nor did she supplement

her IFP application to attempt to meet the requirements of § 1915(g), as she was invited

to do by the District Court. Instead, she simply appealed the District Court’s order.

       We agree that Ball did not demonstrate that she was in imminent danger of serious

physical injury at the time she filed the complaint. It may seem odd that we have granted

Ball’s motion to proceed IFP on appeal and yet affirm the District Court’s revocation of

her IFP status. But because Ball, at the time of her appeal, alleged renewed threats from

the guards that were the subject of the allegations of her complaint, we find that she

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satisfied the requirements of § 1915(g) here. The complaint, in contrast, lacked any such

allegations of renewed threats.

       For the foregoing reasons, we will affirm the District Court’s order.




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