United States District Court, D. Massachusetts
MEMORANDUM AND ORDER
Talwani United States District Judge
before this Court is defendant Superintendent Lisa A.
Mitchell’s Motion for Reconsideration [#45] requesting
reconsideration of the Memorandum and Order [#6] granting
plaintiff’s Motion for Leave to Proceed in forma
pauperis. In that Memorandum and Order, this Court found
plaintiff to be a three-strikes litigant pursuant to 28
U.S.C. § 1915(g); however, plaintiff was permitted to
proceed in forma pauperis since he had alleged that
he was in “imminent danger of serious physical
injury.” Memorandum and Order [# 6 at 3-4].
Mitchell contends that plaintiff was not at the time of
filing of the Complaint, or at any point thereafter, in
imminent danger of serious physical injury, and that
plaintiff therefore is not entitled to proceed in forma
pauperis. In support, Souza Baranowski Correctional
Center (“SBCC”) Correctional Program Officer
Kimberly Butland avers that since plaintiff’s transfer
from Old Colony Correctional Center (“OCCC”) to
the Special Housing Unit (“SHU”) at the SBCC on
February 24, 2015, there have been no reported incidents
involving any SBCC inmate. Affidavit of Kimberly Butland
[#47]. Butland also states that plaintiff had not reported
any physical confrontation with any inmate, nor had any
confrontation been observed. Affidavit [#47 at ¶ ¶
15, 16]. Additionally, Butland asserts that plaintiff has not
identified any SHU inmate with whom there was a conflict.
Id. at ¶ 19.
alleges further that in June, 2015, October, 2015 and
February, 2016, plaintiff had classification hearings at
which he refused to identify by name any of his enemies and
continued to refuse general population housing. Id.
at ¶¶ 21, 23-24. She states that at a recent
classification hearing on February 22, 2016, it was
recommended that plaintiff remain in the SHU. Further,
according to Butland, it was not until March 23, 2016 -- more
than a year since plaintiff’s transfer to SBCC and
seven (7) months after he filed the instant action
(on August 25, 2015) -- that plaintiff agreed to provide a
list of names of inmates that he wished to have documented as
conflicts. Id. at ¶ 25. He submitted a list of
nine inmates, along with “all of the OCCC staff”
named in his lawsuit. Butland further avers that a review of
plaintiff’s conflict list did not note any names of
inmates who are in the SHU with the plaintiff, nor has he
claimed that those enemy inmates reside in the SHU.
Id. at ¶ 28. She claims plaintiff’s list
was given to the Inner Perimeter Security unit at SBCC for
review, and a meeting with him took place to address his
concerns. Id. at ¶¶ 26-27.
response to the Defendant’s Motion for Reconsideration,
plaintiff filed an Opposition [#51], along with exhibits. The
first exhibit contains an SBCC Classification Report [#51-1]
reflecting the Board review on February 22, 2016. That report
indicated, in relevant part, that plaintiff’s transfer
to a medium security facility was warranted; however, there
was an “override for retention in maximum security as
the subject [plaintiff] is adamant that continued SHU status
is warranted and return to the OCCC SHU is not an option at
this time.” Id. at 1. Further, the report
indicated that “[t]he Board encouraged the subject
[plaintiff] to consider placement in medium security in a
population setting, specifically NCCI medium, but he refused
to consider this option, claiming fear for safety.”
Id. (brackets added). The override was approved, and
he remains at SBCC. Id. at 2.
Opposition itself, plaintiff alleges that he remains in
imminent danger from the threat of being returned from single
cell occupancy at SBCC to a double-bunking assignment at
OCCC. Opposition [#51 at ¶ 1]. He adds that his
re-classification reviews occur every four months, and that
he will be returned to OCCC “after my conflict issues
are resolved.” Id. at ¶ 2.
contends further that the SBCC Classification Board’s
recommendation for him to remain at SBCC “can be
modified” by defendants Lori A Cresey and Kathleen J.
Doyle to send him to the SHU at OCCC. Id. at ¶
3. He cites to such a modification made by Kathleen J. Doyle
in October, 2011, resulting in his transfer in February,
2012. Id. He claims that as a result, he was
subjected to the threat of force and violence at OCCC, where
he was double-bunked. He further contends that if he is again
transferred to a double bunk cell at OCCC, he will be in
imminent danger. Plaintiff argues that he should not have to
wait until he is transferred to OCCC to allege the threat of
imminent danger and death by being double-bunked.
Id. at ¶¶ 8-9.
Court noted in the prior Memorandum and Order, many of
plaintiff’s allegations of imminent danger were based
on past alleged wrongdoings and therefore did not demonstrate
sufficiently that he was in “imminent” danger.
Memorandum and Order [#6 at 2]. Additionally, the Court noted
that plaintiff’s claim that he is in imminent danger
because at unspecified times in the future he may be housed
in protective custody at OCCC or SBCC did not demonstrate
sufficiently that his danger is imminent. Id.
Court nonetheless permitted plaintiff to proceed in forma
pauperis in an abundance of caution and because
plaintiff had alleged the defendants refused to place his
enemies list on his record. The Court has now reconsidered
this determination based on the further filings of the
parties. Defendant’s affidavits assert that defendant
has placed his enemies list on his record; plaintiff has
offered no rebuttal. Defendant’s affidavits assert
further that none of plaintiff’s enemies are present in
the SHU where he currently resides; plaintiff again has
offered no rebuttal. Although plaintiff states his concern
that he may be returned to OCCC to a double-bunking
assignment, he offers no allegations of ongoing serious
physical injury or of any pattern of misconduct evidencing a
likelihood of imminent serious injury. See Martin v.
Shelton, 319 F.3d 1048, 1050 (8th Cir. 2003).
the generalized and speculative nature of plaintiff’s
allegations of possible future harm does not meet his burden
of showing imminent danger of serious physical injury for
purposes of application of the exception to the three strikes
rule and eligibility to proceed in forma pauperis.