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Gorbey v. Dunbar

United States District Court, D. Maryland

April 24, 2019




         These consolidated civil actions concern self-represented Plaintiff Michael S. Owl-Feather Gorbey's claims pursuant to Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971), which he filed in forma pauperis. Because Gorbey has more than three strikes[1] under the Prisoner Litigation Reform Act, he must establish that the claims asserted concern an imminent threat of physical harm or pay the full $400 filing fee. If such a threat is not adequately established Gorbey must pay the remainder of the filing fee or the case will be dismissed without prejudice and may not be refiled without payment of the full fee at the time it is filed. See 28 U.S.C. § 1915(g).

         In screening the original complaint filed in this case this Court limited the claims to which counsel for the Federal Bureau of Prisons (BOP) must respond. ECF 12. Gorbey's claims regarding his assignment to a top bunk and exposure to black mold were deemed sufficient to warrant a response from counsel regarding whether Gorbey faces an imminent threat of physical harm as a result of those two conditions of his confinement. Id. at pp. 3-4. This Court further found that Gorbey's claims that he was denied medical care in the past for alleged injuries were insufficient to establish an imminent threat of serious physical harm. Id. at p. 4, see Abdul-Wadood v. Nathan, 91 F.3d 1023 (7th Cir. 1996).

         Counsel's response to Gorbey's request for injunctive relief indicates that he does not qualify for assignment to a bottom bunk or medically prescribed shoes and that the "black mold" he was allegedly exposed to was not toxic and was remediated expeditiously. ECF 18. Gorbey has provided further argument that his health is endangered by his continued assignment to a top bunk as evidenced by injuries sustained in falls during attempts to climb down or up to the bunk; asserts that he is in danger of contracting pneumonia if he is not provided with medically ordered work-boots which he qualified for in another BOP facility; and attempts to resurrect other claims regarding glaucoma treatment and to amend this proceeding to include matters raised in separate civil actions that have already been dismissed. For the reasons set forth below, Gorbey's requests for injunctive relief must be denied, and this Court's prior Order granting Gorbey's Motion to Proceed in Forma Pauperis must be vacated. Gorbey will be provided additional time period to time to pay the remainder of the filing fee due.


         1. Civil Action RDB-18-2754

         In his Motions for Injunction (ECF 9 & 11) Gorbey states he suffers from injuries to his right knee, wrist and shoulder as well as his left foot, ankle and wrist. He asserts that these injuries, though fully healed, require his assignment to a lower bunk and cites injuries he sustained from falls while assigned to a top bunk in 2015 at FCI Edgefield; in 2016 at FCI/USP Leavenworth; and current injuries he sustained at FCI Cumberland in 2018. Id. He claims his prior injuries have made him unable to support his own weight, causing him to fall when climbing to the top bunk. ECF 11 at p. 3.

         Gorbey explains that in 2015, he fell and injured his left wrist; in 2016 he fell fracturing his foot, and tore ligaments in his left ankle and wrist; and on September 21, 2018, he fell injuring his testicles, leg, and foot which required outside emergency surgery. ECF 11 at p. 3. Despite that history, Gorbey claims that BOP staff refuse to provide him with a bottom bunk assignment to prevent any future falls and injuries.[2]

         Gorbey adds that his work assignment at FCI-Cumberland is in landscaping, which requires him to spend three-quarters of his day outdoors. ECF 11 at pp. 5-6. He asserts he consistently gets his feet wet and cannot wear "regular institutional hard toe boots" because of the deformities to his feet and ankles. Id. at p. 6. He states he requires "medical or alternative shoes" and adds that requiring him to have wet feet subjects him to the possibility of "serious sickness that could lead to pneumonia and death." Id. He seeks assignment to a lower bunk and to be provided "medical shoes." ECF 11 at p. 8.

         In their response to Gorbey's Motions for Injunction, Defendants move to vacate this Court's Order granting leave to proceed in forma pauperis and assert that he has not stated an adequate claim of imminent threat of physical harm as required by 28 U.S.C. § 1915(g). ECF 18. They explain that Gorbey received an initial health evaluation on April 23. 2018, when he arrived at FCI Cumberland. ECF 18-2 at p. 5, ¶ 9. At that time, it was noted that Gorbey had a history of orthopedic injuries and complaints but all fractures he had sustained were healed. Id.

         Defendants explain that Gorbey is not assigned to a lower bunk because he doesn't meet the medical requirements for a lower bunk pass. ECF 18-2 at p. 9; ECF 18-3 at pp. 22-24. A lower bunk assignment requires "[c]omprehensive medical evaluation and documentation" that supports the following criteria:

1. Paraplegic or Hemiplegic (wheelchair, canes or crutches) (M/T)
2. Seizure disorder (M)
3. Documented peripheral neuropathy stage III (M)
4. Arm or leg prosthesis (M)
5. Patients with foot drop and/or AFO brace (T)
6. Arm or leg casts (90 days after cast removal) (M)
7. Severe DJD/OA/Osteoperosis/Post-op ORTHO (30-90 days) (T)
8. Obesity [Body Mass. Index greater than ...

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