Williams v. Forte , 135 F. App'x 520 ( 2005 )

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Precedential or Non-Precedential: Non-Precedential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.
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NOT PRECEDENTIAL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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