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Gorbey v. Muberik

United States District Court, D. Maryland

October 30, 2019

MICHAEL S. OWL-FEATHER GORBEY, Plaintiff,
v.
DR. MOHAMED MUBAREK, [1] THOMAS GERA, P.A., VANMETER, STEVEN EIRICH, HAMELTON, THE UNITED STATES, Defendants.

          MEMORANDUM OPINION

          RICHARD D. BENNETT, UNITED STATES DISTRICT JUDGE.

         This matter is before the Court for consideration of whether the complaint filed by Plaintiff Michael Gorbey adequately states an imminent danger of physical harm as required by 28 U.S.C. § 1915(g). Defendants, all of whom are employed by the Federal Bureau of Prisons (FBOP) and work at Federal Correctional Institution-Cumberland (FCI-Cumberland), assert that the complaint fails to satisfy the standard and additionally allege they are entitled to summary judgment or dismissal of the complaint. ECF 18. Gorbey opposes the pending Motion to Dismiss or for Summary Judgment on the grounds that it extends beyond the issue of imminent danger, seeks discovery in aid of establishing his claim of imminent danger, and moves to stay the proceedings and for sanctions. ECF 22, 25, 28, 32 & 33. In addition, Gorbey moves for reconsideration (ECF 27) asserting that there must be “imminent danger proceedings” prior to consideration of the merits of his claims and moves for leave to proceed in forma pauperis (ECF 29). The matters pending have been fully briefed; there is no need for an evidentiary hearing. See Local Rule 105.6 (D. Md. 2018). For the reasons stated below, Defendants' motion, construed as a Motion for Summary Judgment, shall be granted and Gorbey's pending motions denied.

         BACKGROUND

         Gorbey is a FBOP inmate formerly confined to FCI-Cumberland[2] for service of a 21 year sentence imposed by the Superior Court for the District of Columbia. ECF 18-2 at 3, ¶4. During the course of his incarceration Gorbey has accumulated approximately eleven strikes under 28 U.S.C. § 1915(e) and (g). See Gorbey v. U.S.A., et al., Civ. Action 1:08cv332 (D. Md. 2008), Gorbey v. U.S. Military, et al., Civ. Action 1:08cv334 (D. Md. 2008), Gorbey v. U.S. Military, et al., Civ. Action 1:08cv339 (D. Md. 2008), Gorbey v. U.S.A., et al., Civil Action 2:09cv313 (S.D. W.Va. 2009), Gorbey v. U.S.A., et al., 1:09cv262 (D. D.C. 2009), Gorbey v. U.S.A., et al., Civil Action 2:08cv121 (N.D. W.Va. 2008), Gorbey v. U.S.A., et al., Civil Action 1:08cv649 (D. D.C. 2008), Gorbey v. U.S.A., et al., Civil Action 1:08cv650 (D. D.C. 2008), Gorbey v. District of Columbia, et al., Civil Action 1:09cv261 (D. D.C. 2009), Gorbey v. District of Columbia, Civil Action 1:10cv1751 (D. D.C. 2010), Gorbey v. State of Virginia, et al., Civil Action 2:11cv164 (E.D. Va. 2011). Because of that history, Gorbey must demonstrate an imminent threat of physical harm before a suit for damages filed in this Court may proceed without prepayment of the $400 civil filing fee. See 28 U.S.C. §1915(g).

         The complaint in the instant case concerns Gorbey's claim that: (1) he has glaucoma and the medication provided to treat it caused side effects that were a known risk at the time they were prescribed (ECF 8 at 2-3); (2) due to a shoulder injury involving repeated dislocations of his shoulder, he requires a cuff-in-front medical order that has been denied (ECF 1 at 3; ECF 8 at 5); (3) he is hypoglycemic and requires medically-ordered additional food to avoid serious symptoms such as fainting and severe chest pains (ECF 8 at 6-7); and (4) his administrative remedy complaints regarding staff misconduct that places him in danger of assault by another inmate are ignored (ECF 8 at 7). The Court directed counsel to address these claims and to show cause why each does not present an imminent threat of physical harm to Gorbey. ECF 9; ECF 10. The facts as established by the record before the Court are discussed more fully below.

         STANDARD OF REVIEW

         Imminent Danger

         The “imminent danger” exception to § 1915(g)'s “three strikes” rule must be construed narrowly and applied only “for genuine emergencies, ” where “time is pressing” and “a threat . . . is real and proximate” to the alleged official misconduct. Lewis v. Sullivan, 279 F.3d 526, 531 (7th Cir. 2002). “The exception focuses on the risk that the conduct complained of threatens continuing or future injury, not on whether the inmate deserves a remedy for past misconduct.” Martin v. Shelton, 319 F.3d 1048, 1050 (8th Cir. 2003). The bar for establishing imminent danger although high, is not insurmountable.

If limited to situations in which, say, a beating is ongoing, no prisoner will find solace; once the beating starts, it is too late to avoid the physical injury; and once the beating is over the prisoner is no longer in “imminent danger” . . . . Reading the imminent-danger language this way would make it chimerical, a cruel joke on prisoners.

Lewis, 270 F.3d at 531.

         “[T] he exception focuses on the risk that the conduct complained of threatens continuing or future injury, not whether the inmate deserves a remedy for past misconduct.” Martin v. Shelton, 319 F.3d 1048, 1050 (8th Cir.2003). “Vague, speculative, or conclusory allegations are insufficient to invoke the exception of § 1915(g); rather, the inmate must make ‘specific fact allegations of ongoing serious physical injury, or of a pattern of misconduct evidencing the likelihood of imminent serious physical injury.'” Johnson v. Warner, 200 Fed.Appx. 270, 272 (4th Cir. 2006) quoting Martin v. Shelton, 319 F.3d 1048, 1050 (8th Cir. 2003) see also Richardson v. Hite, 53 Fed.Appx. 291 (4th Cir. Dec.23, 2002) (finding no “imminent danger” in allegation that inmate was being denied medication for his elevated cholesterol levels where inmate did not demonstrate that his cholesterol levels were necessarily dangerous or that medication was a medical necessity); Richardson v. Joseph, 2006 WL 1075160 (W.D.Va. April 21, 2006) (finding no “imminent danger” in allegation that doctor changed inmate's blood pressure medication without conducting a physical examination where inmate did not specify any adverse side effects he had experienced or allege facts indicating that the new medication was harmful).

         Summary Judgment

         Summary Judgment is governed by Fed.R.Civ.P. 56(a) which provides that:

The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.

         The Supreme Court has clarified that this does not mean that any factual dispute will defeat the motion:

By its very terms, this standard provides that the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986) (emphasis in original).

         “A party opposing a properly supported motion for summary judgment ‘may not rest upon the mere allegations or denials of [his] pleadings,' but rather must ‘set forth specific facts showing that there is a genuine issue for trial.'” Bouchat v. Baltimore Ravens Football Club, Inc., 346 F.3d 514, 522 (4th Cir. 2003) (alteration in original) (quoting Fed.R.Civ.P. 56(e)). The court should “view the evidence in the light most favorable to . . . the nonmovant, and draw all inferences in her favor without weighing the evidence or assessing the witness' credibility.” Dennis v. Columbia Colleton Med. Ctr., Inc., 290 F.3d 639, 645 (4th Cir. 2002). The court must, however, also abide by the “affirmative obligation of the trial judge to prevent factually unsupported claims and defenses from proceeding to trial.” Bouchat, 346 F.3d at 526 (internal quotation marks omitted) (quoting Drewitt v. Pratt, 999 F.2d 774, 778-79 (4th Cir. 1993), and citing Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986)).

         It is the affirmative obligation to prevent factually unsupported claims from proceeding, coupled with the purpose of 28 U.S.C. § 1915(g) to discourage frivolous lawsuits and penalize those who file more than three such complaints that underlies this Court's decision to deny Gorbey's Motion for Reconsideration. Thus, both the imminent danger requirement ...


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