1

Plaintiff is currently housed in the State 

Correctional Institution, Albion, Pennsylvania. 

UNITED STATES DISTRICT COURT FOR THE

MIDDLE DISTRICT OF PENNSYLVANIA

MICHAEL LEE MYERS, :

:

Plaintiff : No. 4:CV-05-2234

:

vs. : (Complaint Filed 10/31/05) 

:

DR. GADDIS, et al., : (Judge Muir)

:

Defendants :

ORDER

July 13, 2006

Background

On October 31, 2005, plaintiff, an inmate formerly

confined in the State Correctional Institution, Waymart,

(“SCI-Waymart”), Pennsylvania1, filed the instant pro se civil

rights action pursuant to 42 U.S.C. § 1983. Named as

defendants are the following SCI-Waymart employees, Doctor

Gaddis, C.O. M. Scott, Sgt. Smith, Hearing Officer Kim Crow,

Doctor Lindenmuth, C.O. Barrett, Sgt. Franks, and C.O.

Winters. In his complaint, Myers alleges that on October 7,

2005, he was assaulted and thrown into a door. (Doc. No. 1,

complaint). He claims that he suffered a leg and shoulder

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injury and that he was “forced medication”. Id. Finally, he

alleges that he was “forced sexual contact.” Id. For relief,

plaintiff seeks compensatory damages as well as a transfer and

to “stop the forced medication.” Id. 

On February 21, 2006, a motion to dismiss, or for a more

definite statement was filed by defendants Scott, Smith, Crow

and Barrett, along with a brief in support (Doc. Nos. 18, 19).

Plaintiff was twice granted an opportunity to file a brief in

opposition to defendants' motion to dismiss. (Doc. Nos. 21,

23). However, rather that file an opposing brief, on May 19,

2006, plaintiff filed an amended complaint. (Doc. No. 26). 

Federal Rule of Civil Procedure 15(a) provides in part

that "[a] party may amend the party's pleading once as a

matter of course at any time before a responsive pleading is

served . . . ." This court initially notes that Rule 15 has

a liberal amendment of complaint policy. Foman vs. Davis, 371

U.S. 178, 181-82 (1962). Furthermore, it is well-recognized

that liberal standards are to be applied to pro se litigants.

Haines vs. Kerner, 404 U.S. 519, 520 (1972). It is undisputed

that plaintiff has not previously submitted an amended

complaint or sought leave of court to do so.

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A number of federal courts have ruled that "the filing of

a motion does not constitute a 'responsive pleading' and

therefore does not terminate the time within which a pleading

may be amended as of right." 6 Charles Alan Wright et al.,

Federal Practice and Procedure § 1475, at 554-55 (2d ed. 1990)

(footnote omitted); see also Washington vs. New York City Bd.

of Estimate, 709 F.2d 792, 795 (2d Cir.), cert. denied, 464

U.S. 1013 (1983).

In Rekeweg vs. Federal Mut. Ins. Co., 27 F.R.D. 431, 434

(N.D. Ind. 1961), the district court concluded that a motion

to dismiss was not a responsive pleading for the purpose of

Rule 15. It stated that "the term 'responsive pleading'

should be interpreted in the light of Rule 7(a) of the Federal

Rules of Civil Procedure which defines 'pleadings' as

including only the Complaint, the Answer, and the Reply." Id.

at 434. The Court of Appeals for the Third Circuit has

additionally recognized that "neither a motion to dismiss, nor

a motion for summary judgment, constitutes a responsive

pleading under Federal Rule of Civil Procedure 15(a)."

Centifanti vs. Nix, 865 F.2d 1422, 1431 n.9 (3d Cir. 1989);

see also Reuber vs. United States, 750 F.2d 1039, 1062 n.35

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(D.C. Cir. 1984); Barksdale vs. King, 699 F.2d 744, 746-47

(5th Cir. 1983) (per curiam); McDonald vs. Hall, 579 F.2d 120,

121 (1st Cir. 1978) (per curiam). The proposed amended

complaint will be accepted by the court. Furthermore, under

Rule 15(a) when an amended complaint is filed it supersedes

the original complaint. Thus, the pending motion to dismiss

the original complaint, or for a more definite statement will

be dismissed as moot.

On June 5, 2006, in response to plaintiff's amended

complaint, defendants filed a motion to revoke plaintiff's in

forma pauperis status, claiming that he has filed three prior

civil rights suits which were ultimately dismissed for failure

to state a claim, thereby barring permission to proceed in

forma pauperis pursuant to 28 U.S.C. § 1915(g). (Doc. No.

27). Thus, before plaintiff's amended complaint can be

initially screened by this court, defendants' motion to revoke

plaintiff's in forma pauperis status must first be resolved.

For the reasons set forth below, defendants' motion will be

granted and the plaintiff will be directed to submit the full

filing fee. 

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Discussion

The Prison Litigation Reform Act of 1996 (“PLRA”), in an

effort to halt the filing of meritless inmate litigation,

enacted what is commonly referred to as the "three strikes"

provision. Codified at 28 U.S.C. § 1915(g), the “three

strikes” rule provides that an inmate who has had three prior

actions or appeals dismissed as frivolous, malicious, or for

failing to state a viable claim may not proceed in a civil

action in forma pauperis “unless the prisoner is in imminent

danger of serious physical injury.” See 28 U.S.C. § 1915(g),

and Abdul-Akbar vs. McKelvie, 239 F.3d 307, 312 (3d Cir

2001)(en banc). The “imminent danger” exception to §

1915(g)’s “three strikes” rule is available “for genuine

emergencies,” where “time is pressing” and “a threat ... is

real and proximate.” Lewis vs. Sullivan, 279 F.3d 526, 531

(7th Cir.2002). “Imminent danger” is assessed not at the time

of the alleged incident, but rather at the time the complaint

is filed. Abdul-Akbar, 239 F.3d at 312.

Dismissals of actions entered prior to the effective date

of the PLRA are counted toward the “three strikes” referred to

in 28 U.S.C. § 1915(g). See Keener vs. Pennsylvania Board of

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Probation and Parole, 128 F.3d 143, 144-45 (3d

Cir.1997)(holding that dismissals based on frivolousness

before 1996 “are included among the three that establish the

threshold for requiring a prisoner to pay the full docket fees

unless the prisoner can show s/he is ‘under imminent danger of

serious physical injury’”). The “three strikes” provision

does not bar disqualified inmates from filing additional

actions, but it does deny them the opportunity to proceed in

forma pauperis and requires them to pay the required filing

fee.

Since 1995, Myers has initiated thirteen civil actions in

this court. The following three actions, were dismissed for

failure to state a claim upon which relief may be granted:

Myers vs. Morgan, Civil No. 4:CV-95-1127 (M.D. Pa. March 4,

1996) (Muir, J); Myers vs. Dimott, Civil No. 4:CV-95-1335

(M.D. Pa. July 22, 1996) (Muir, J); Myers vs. Corbin, Civil

No. 4:CV-99-0738 (M.D. Pa. Nov. 12, 2000)(Muir, J).

As for Myer's present action, there is no indication that

plaintiff is in danger of imminent "serious physical injury".

At the time he filed his complaint, Myers was incarcerated at

SCI-Waymart. In his application to proceed in forma pauperis,

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2 To the extent that plaintiff makes a vague attempt

at arguing that he is in danger at SCI-Albion, his present

place of confinement, see Doc. No. 30, Ex. A, such

allegations do not constitute imminent danger for the

purposes of filing the instant action. Abdul-Akbar, supra. 

Plaintiff's allegations would constitute a new cause of

action, which would be more appropriately filed in the 

United States District Court for the Western District of

Pennsylvania for the convenience of the parties and in the

interests of justice, since it appears that the defendants

and the incidents complained of are within that district.

See 28 U.S.C. § 1391(b).

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Myers generally states “death threats” and “assaulted by

staff”. (Doc. No. 2). He provides no other details, such as

when such allegations occurred, or the names of those accused

of the conduct. Id. Thus, without more, the Court finds that

such allegations cannot be considered impending dangers about

to occur. Abdul-Akbar, supra. Moreover, plaintiff is no

longer housed at SCI-Waymart, and is, therefore, no longer in

danger of those allegations.2 Thus, he is not entitled to

proceed in forma pauperis in this action pursuant to §

1915(g). 

ACCORDINGLY, IT IS HEREBY ORDERED THAT:

1. Defendants' motion to revoke plaintiff's in

forma status, (Doc. No. 27) is GRANTED.

2. The Order of December 29, 2005, (Doc. No.

10), granting Myer's Application to Proceed

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3 To date, a partial filing fee in the amount of $90.49

has been tendered to the District Court. 

4

Myer's action was filed prior to April, 2006,

increase in filing fee.

In Forma Pauperis is rescinded. 

3. Plaintiff’s Application to Proceed In Forma

Pauperis, (Doc. No. 2 ) is DENIED. 

4. Myers shall pay the remainder of the filing

fee, or $159.513 within twenty (20) days

from the date of this Order. The failure to

timely pay the remaining filing fee shall

result in the dismissal of the above

captioned action without further notice for

want of prosecution.

5. The Clerk of Court shall not accept for

filing any motions in this civil action

until the full $250.004 filing fee is paid.

 

6. Defendants' motion to dismiss, or for a

more definite statement (Doc. No. 18) is

dismissed as moot.

s/Malcolm Muir 

MUIR

United States District Judge

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