United States District Court, W.D. Virginia, Roanoke Division
MICHAEL S. OWLFEATHER-GORBEY, Plaintiff,
J. BOWLES, et al., Defendants.
JACKSON L. KISER, SENIOR UNITED STATES DISTRICT JUDGE
S. Owlfeather-Gorbey, a federal inmate proceeding pro se,
commenced this civil action pursuant to Bivens v. Six
Unknown Named Agents of Fed. Bureau of Narcotics, 403
U.S. 388, 389 (1971), by no earlier than November 1, 2016. At
the onset of the action, the court permitted Plaintiff to
apply to proceed in forma pauperis but advised
Plaintiff that such permission would be rescinded if
Plaintiff has had three prior cases dismissed as frivolous,
malicious, or for failure to state a claim, pursuant to 28
U.S.C. § 1915(g).
review of court records, it appears Plaintiff has had at
least three non-habeas civil actions or appeals previously
dismissed as frivolous, as malicious, or for failing to state
a claim before filing this action. See Owlfeather-Gorbey
v. Jackson, et al., No. 2:16-cv-00551, slip op.
at 4 (E.D. Va. Sept. 22, 2016) (dismissed for failing to
state a claim); Gorbey v. The State of Virginia, et
al. No. 2:1 l-cv-00164, slip op. at 4 (E.D. Va. Mar. 17,
2011) (dismissed for failing to state a claim); Gorbey v.
United States, et al., No. 2:08-cv-00121, slip op. at
3-4 (N.D. W.Va. July 7, 2010); see, e.g., Gorbey
v. Fed. Bureau of Alcohol, Tobacco, Firearms, &
Explosives, et ah, No. 5:11-cv-00126, slip op. at 5-10
(N.D. W.Va. Mar. 14, 2012) (M.J., Seibert) (listing 25 cases
that qualify as strikes); see also Coleman v.
Tollefson, 135 S.Ct. 1759, 1763 (2015) (holding a
"strike" dismissal is counted regardless to the
timing of a subsequent appeal); McLean v. United
States, 566 F.3d 391, 399 (4th Cir. 2009) (dismissals
without prejudice for frivolousness should not be exempted
from 28 U.S.C. § 1915(g)).
reviewing Plaintiffs submissions in this civil action, it is
clear that Plaintiff does not demonstrate that he was under
any imminent threat of any serious physical injury related to
the defendants within the meaning of 28 U.S.C. § 1915(g)
when he commenced this action. See, e.g.. Chase
v. O'Malley, 466 F.App'x 185, 186 (4th Cir.
2012) (noting the prisoner must be seeking relief from and
demonstrate a danger that is imminent at the time of filing
the complaint); Pettus v. Morgenthau, 554 F.3d 293,
296 (2d Cir. 2009) (noting the complaint must reveal a nexus
between the imminent danger it alleges and the claims it
asserts to qualify for imminent-danger exception). Plaintiffs
repeated reliance on the phrase "imminent danger"
is an invocation of a label and conclusion that is not
entitled to an assumption of truth. Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007).
complaint, Plaintiff describes, inter alia,
institutional hearings; being held in segregation; a cell
assignment on August 18, 2016, that did not result in a fight
with another inmate; the prior conditions of his cell; being
assigned a top bunk for five weeks until September 6, 2016,
despite having a lower bunk pass; not showering for eight
days; interrupted access to phone and law library privileges,
"adequate" food trays, grievances, and property
inventories; and not having a mattress in his cell until
10:00 p.m. In the motion for a temporary restraining order,
Plaintiff describes torn clothes and mattresses; his cell
being searched; having to wear paper clothes; not having an
adequate towel; and a "false" disciplinary charge.
Although Plaintiff briefly alleges in the complaint that he
has a bacterial infection on his face that is not being
treated, Plaintiff has not alleged that the infection is
serious or that a defendant is somehow related to that fact.
See, e.g.. Estelle v. Gamble. 429 U.S. 97,
104 (1976); Pettus, supra. In a later filed
document, Plaintiff complains recited his prior complaints
and also about security restraints being applied to tightly
in November 2016; being spoken to rudely; "bogus"
disciplinary charges; living in a flooded cell between August
18 and September 6, 2016; and wearing paper clothes.
Plaintiff further alleges at the end of the document that the
pharmacy at his prison "cannot or won't get"
his prescriptions for glaucoma, which is worsening. However,
Plaintiff does not relate the allegation about the pharmacy
to the defendants or claim that issue occurred at the time he
filed the complaint. See, e.g., Pettus,
supra; Burgess v Conway, 631 F.Supp.2d 280,
283 (W.D.N.Y.2009) (recognizing events postdating the
complaint do not qualify for the imminent danger exception).
I dismiss the action without prejudice for Plaintiffs failure
to pay the filing fee at the time of filing the complaint and
dismiss all pending motions as moot. See, e.g., Dupree v.
Palmer. 284 F.3d 1234, 1237 (11th Cir. 2002) (reasoning
that the filing fee is due upon filing a civil action when in
forma pauperis provisions do not apply to plaintiff
and that the court is not required to permit plaintiff an
opportunity to pay the filing fee after recognizing plaintiff
is ineligible to proceed in forma pauperis).
 Plaintiffs other moniker is Michael
 To the extent Plaintiff wants to bring
claims about the allegedly withheld prescriptions or
bacterial infection, he, of course, can commence a new and
separate civil action by filing a complaint that conforms to
the Federal Rules of ...