NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 10-4764
___________
ALTON D. BROWN,
Appellant
v.
*SECRETARY PENNSYLVANIA DEPARTMENT OF CORRECTIONS; DAVID
DIGUGLIELMO; DORINA VARNER; WILLIAM BANTA; FELIPE ARIAS; PRISON
HEALTH SERVICES, INC.; SCOTT WILLIAMSON; JOHN K. MURRAY; GEORGE
HILTNER; JULIE KNAVER; JOHN DAY; D. WHITE; PHYSICIAN ASSISTANT
JOHN DOE; PHYSICAL ASSISTANT JANE DOE; MYRON STANISHEFSKI
*(Pursuant to Rule 43(c), Fed. R. App. P.)
____________________________________
On Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. Civil Action No. 10-cv-01398 )
District Judge: Honorable David S. Cercone
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
June 21, 2012
Before: CHAGARES, VANASKIE and BARRY, Circuit Judges
(Opinion filed: July 2, 2012)
___________
OPINION
___________
PER CURIAM
Pro se appellant, Alton Brown, appeals from the order of the United States District
Court for the Western District of Pennsylvania denying his motion for leave to proceed in
forma pauperis (“IFP”). For the reasons that follow, we will vacate the District Court’s
judgment and remand this matter for further proceedings.
I.
Brown is a Pennsylvania prisoner with “three strikes” under the Prison Litigation
Reform Act (“PLRA”). See 28 U.S.C. § 1915(g). Accordingly, he may not proceed with
a civil action or appeal without pre-paying the filing fee unless he “is under imminent
danger of serious physical injury.” Id. The danger must be imminent at the time the
complaint is filed. See Abdul-Akbar v. McKelvie, 239 F.3d 307, 312 (3d Cir. 2001) (en
banc).
Brown filed the IFP motion at issue here along with a complaint in the District
Court. Brown’s complaint was filed under 42 U.S.C. § 1983, and named as defendants
various members of the Pennsylvania Department of Corrections as well as the
institution’s health care provider and certain medical personnel. Brown alleges in his
complaint that defendants violated his First, Eighth and Fourteenth Amendment rights by
subjecting him to cruel and unusual conditions of confinement, acts of retaliation and the
denial of medical care. In particular and as relevant here, Brown alleges that the
Restrictive Housing Unit (“RHU”), where he has been confined since January 2006, has
no open windows, no air conditioning, and a ventilation system that is faulty and dirty.
Brown further states that approximately twenty cells on J-Block in the RHU have been
renovated by the maintenance department in such a way that the cell fronts have been
2
closed off by Plexiglas or sheets of metal. According to Brown, a closed cell front results
in temperatures 30 degrees hotter than elsewhere in the prison during the summer months
and prevents any heat from entering the cell in the winter. Additionally, because the
ventilation system in the RHU is not designed to operate with closed cell fronts, Brown
asserts that the RHU is constantly polluted with a fine white dust from the air-
conditioning ducts which do nothing other than re-circulate warm and dirty air. Brown
alleges that the RHU air is further polluted by the guards’ tobacco smoke.
Brown states that he has spent approximately half of his stay in the RHU housed
in one of the closed cells. He claims that his conditions of confinement have gotten so
bad that he can “barely breath and it feels as if he’s suffocating.” See Compl. at 5 ¶ 38.
Brown alleges that his “lungs are painful at times and tight, he is constantly coughing up
mucous that is sometimes speckled with blood and other unknown matter, he has severe
headaches, watery eyes, and a change in his voice.” See id. at ¶ 40. Finally, Brown
contends that continually breathing in large amounts of dirt, dust and smoke has resulted
in asthma-like symptoms, including clogged sinuses and wheezing sounds in his lungs.
Brown claims that he has been denied adequate medical treatment for his alleged
breathing difficulties in retaliation for his having filed various lawsuits and prison
grievances. In addition to injunctive and declaratory relief, Brown sought compensatory
and punitive damages.
Brown’s IFP motion and complaint were referred to a Magistrate Judge who
issued a Report concluding that Brown’s allegations failed to rise to the level of imminent
3
danger within the meaning of § 1915(g), and thus recommending that his IFP motion be
denied. Having considered Brown’s objections, the District Court found his reliance on
this Court’s decision in Gibbs v. Cross, 160 F.3d 962 (3d Cir. 1998), unavailing. The
court concluded that “Gibbs neither reflects the applicable standards of law governing the
matter at hand, see Abdul-Akbar v. McKelvie, 239 F.3d 307, 312-13 (3d Cir. 2001) (en
banc), nor reflects a factually analogous basis for satisfying those standards.” (District
Ct. Mem. Order at 1.) Accordingly, the District Court entered an order denying Brown’s
IFP motion and dismissing his complaint for failure to pay the filing fee. The District
Court allowed Brown to retain the right to reopen the matter by paying the full fee within
60 days. The instant appeal followed.
II.
We have jurisdiction under 28 U.S.C. § 1291 to review the denial of a motion
seeking leave to proceed IFP, see Abdul-Akbar, 239 F.3d at 311, and we exercise plenary
review over the District Court’s interpretation of § 1915(g). See Gibbs v. Cross, 160
F.3d at 964.1 We conclude that the District Court erred in denying Brown’s IFP motion.
Pro se allegations of imminent danger must be evaluated in accordance with the
liberal pleading standard applicable to pro se litigants. See id. at 966; Gibbs v. Roman,
1
Brown has submitted documents to support his assertion that he delivered his
notice of appeal to prison officials for mailing within the time limit prescribed by Fed. R.
App. P. 4(a)(1)(A). Accordingly, we find that his appeal was timely filed under the
prisoner mailbox rule of Houston v. Lack, 487 U.S. 266, 271-72 (1988). See, e.g., Pabon
v. Mahanoy, 654 F.3d 385, 391 n.8 (3d Cir. 2011) (citing Burns v. Morton, 134 F.3d
109, 113 (3d Cir. 1998)) (“The federal ‘prisoner mailbox rule’ provides that a document
is deemed filed on the date it is given to prison officials for mailing.”).
4
116 F.3d 83, 86 & n.6 (3d Cir. 1997), overruled on other grounds by Abdul-Akbar, 239
F.3d at 312. This standard does not require district courts to accept “allegations that are
fantastic or delusional and rise to the level of the ‘irrational or wholly incredible.’” Gibbs
v. Cross, 160 F.3d at 967 (quoting Denton v. Hernandez, 504 U.S. 25, 33 (1992)). The
District Court did not conclude that Brown’s allegations rise to that level, however, and
we cannot say that they do. While we express no opinion on the merits of Brown’s
allegations, we cannot agree with the District Court that they are not sufficient to invoke
the exception contained in § 1915(g). They plainly state a continuing danger of serious
physical injury that was imminent at the time Brown filed his complaint.
Additionally, the District Court failed to explain its conclusion that Gibbs v. Cross
no longer reflects the applicable standard for imminent danger allegations, and we are
uncertain as to the basis for its conclusion that Brown’s reliance on Gibbs is misplaced.
Although this Court has held that allegations that the prisoner faced imminent danger in
the past are insufficient to trigger the exception to § 1915(g), see Abdul-Akbar, 239 F.3d
at 312 (overruling Gibbs v. Roman, 116 F.3d at 86), there is nothing in Abdul-Akbar to
suggest that we have retreated from our conclusion in Gibbs v. Cross that a court should
construe all allegations in a complaint in favor of the plaintiff or our determination that
the factual basis for the imminent danger allegation in that case (e.g., continuous flow of
contaminated air into cell was causing headaches and other symptoms) would no longer
be sufficient for § 1915(g) purposes.
We are cognizant of the fact that Brown has an extensive history of litigation, and
5
we share the District Court’s concerns that his claims of imminent danger have been
included in his complaint solely to avoid application of the “three strikes” provision set
forth in § 1915(g). Nevertheless, the PLRA permits even litigious prisoners to proceed
without pre-payment of the fee if they are under imminent danger of serious physical
injury. Brown has adequately alleged as much in this case, and those allegations were
not challenged. Significant problems with ventilation, at least where resulting health
problems are caused by ventilation issues, can meet the imminent danger standard. See
Gibbs v. Cross, 160 F.3d at 965. Brown is, thus, eligible to proceed without pre-paying
the filing fee.
III.
Accordingly, we will vacate the judgment of the District Court and remand the
matter for it to grant Brown’s motion for leave to proceed IFP if it determines that he has
made a sufficient showing of indigence, see Gibbs v. Ryan, 160 F.3d 160, 161 n.1 (3d
Cir. 1998), and thereafter to conduct such further proceedings as may be appropriate. We
emphasize that we express no opinion on the merits of Brown’s claims and that his
complaint remains subject to screening under 28 U.S.C. § 1915(e). See Gibbs v. Cross,
160 F.3d at 967.
6