United States District Court, D. Maryland
MICHAEL S. OWL-FEATHER GORBEY, Plaintiff,
DR. MOHAMED MUBAREK,  THOMAS GERA, P.A., VANMETER, STEVEN EIRICH, HAMELTON, THE UNITED STATES, Defendants.
RICHARD D. BENNETT, UNITED STATES DISTRICT JUDGE.
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.
is a FBOP inmate formerly confined to
FCI-Cumberland 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. Â§1915(g).
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.
“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
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.
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).
Judgment is governed by Fed.R.Civ.P. 56(a) which provides
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.
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).
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)).
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