ORDER

Re: ECF No. 14

MAUREEN P. KELLY, Magistrate Judge.

Cordiro Brown, ("Plaintiff"), has been granted leave to proceed in forma pauperis, ECF No. 2, and his pro se prisoner civil rights Complaint has been filed, ECF No. 8. In the Order, granting Plaintiff's IFP Motion (the "IFP Order"), the Court noted that Plaintiff had acquired three strikes but that he had alleged exposure to second hand smoke and pursuant to case law from the United States Court of Appeals for the Third Circuit, such exposure could come within the narrow exception for three strikes, which requires allegations of imminent danger of serious physical injury. Gibbs v. Cross, 160 F.3d 962 (3d Cir. 2001). In the IFP Order, the Court stated that after service, the Defendants could challenge the factual allegations of Plaintiff and whether Plaintiff actually comes within the imminent danger exception. As noted, it is the Court that makes this determination, not a jury. If the Court determines that Plaintiff does not come within the exception, the IFP Order could then be vacated.

On August 9, 2019, Plaintiff filed a "Motion to Amend In Forma Pauperis Order" in which he made two distinct claims. First, Plaintiff claimed that the IFP Order erred in counting Brown v. Green, No. 487-cv-2018 (M.D. Pa.) as a strike. Secondly, Plaintiff claimed that the prison authorities erred in deducting money from his account and requested a delay in having to pay the filing fees piecemeal as required even if granted IFP. We will address each claim in order.

Plaintiff first alleges that we erred in counting Brown v. Green, No. 487-cv-2018 (M.D. Pa.) as a strike. We are unpersuaded.

The United States Court of Appeals for the Third Circuit set out a bright line rule for what qualifies as a strike. In Byrd v. Shannon, 715 F.3d 117 (3d Cir. 2013), the Court of Appeals held:

Moreover, not only must a court do so, it must do so correctly. See, e.g., Millhouse v. Heath, 866 F.3d 152, 154 (3d Cir. 2017) ("Because the District Court explicitly and correctly concluded that Millhouse's complaint revealed an immunity defense on its face and dismissed with prejudice for failure to state a claim upon which relief may be granted pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii), Doe qualifies as a strike.").

We find that the dismissal of Plaintiff's civil action in Brown v. Green, No. 487-cv-2018 by the United States District Court for the Middle District of Pennsylvania meets these tests. First, the District Court granted the Motion to Dismiss for Failure to state a claim upon which relief could be granted, under Fed. R. Civ. P. 12(b)(6), that was filed by the defendants in Brown v. Green wherein they asserted the defense of res judicata. The District Court did so because it found that Plaintiff's suit was barred by res judicata. We attach hereto a copy of the District Court's Memorandum as Appendix I. The Memorandum makes clear that the Middle District in Brown v. Green, No. 487-cv-2018, granted the Defendants' Motion to Dismiss that had been filed pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure and that the civil action was entirely dismissed with prejudice for failure to state a claim upon which relief could be granted.

Moreover, not only did the Middle District expressly dismiss the Complaint in Brown v. Green for failure to state a claim upon which relief could be granted pursuant to Fed. R. Civ. P. 12(b)(6), with prejudice, it did so correctly. Baxter v. Corrections Corp. of Am., 3-15-0205, 2015 WL 3397772, at *2 (M.D. Tenn. May 26, 2015) ("Because the instant case is barred by the doctrine of res judicata, it fails to state a claim on which relief may be granted.... For these reasons, not only should the instant case be dismissed with prejudice, dismissal of the instant case should count as a `strike' under § 1915(g)."). A dismissal of a Complaint because it is barred by res judicata is properly dismissed for failure to state a claim upon which relief can be granted and, such a dismissal constitutes a "strike." Walker v. Page, 59 F.App'x 896, 900 (7th Cir. 2003) (case squarely barred by res judicata counts as strike under § 1915(g)); Higgins v. Carpenter, 258 F.3d 797, 801 (8th Cir. 2001) (prior cases dismissed as barred by res judicata qualified as strikes); Burke v. St. Louis City Jails, 603 F.App'x 525 (8th Cir. 2015) (affirming the portion of the district court's decision determining that the plaintiff had acquired three qualifying strikes when one of the cases the district court cited was dismissed on res judicata grounds); Harmon v. Webster, 263 F.App'x 844, 846 (11th Cir. 2008) (affirming the district court's determination that its dismissal on res judicata grounds should count as a strike for purposes of § 1915(g)). Hence, Brown v. Green surely constitutes a strike and indeed, Plaintiff's third strike.

Moreover, we reject, as legally unfounded, Plaintiff's contention that because he has appealed the District Court's dismissal of his case in Brown v. Green, that the pendency of the appeal prevents this Court from counting the Middle District's dismissal as a strike. This argument has been made to, and, rejected by the United States Court of Appeals for the Third Circuit. Parker v. Montgomery County Correctional Facility, 870 F.3d 144 (3d Cir. 2017) (holding that the pendency of an appeal from the district Court's dismissal which counted as a third strike did indeed prevent the now three struck prisoner from proceeding in forma pauperis on appeal from the third strike).

Accordingly, Brown v. Green, No. 487-cv-2018 (M.D. Pa.) counts as a strike and thus, contrary to Plaintiff's assertion in his pending Motion, Plaintiff has indeed accumulated three strikes and, so, contrary to Plaintiff's contention, if the Court determines that Plaintiff does not come within the imminent danger exception, the Order granting his IFP Motion could indeed be vacated and he could be required to pay the entire filing fee or face dismissal. Hence, his Motion to Amend the In Forma Pauperis Order is DENIED to the extent that it sought to have this Court conclude that Brown v. Green does not constitute a strike.1

Plaintiff's second complaint is that the prison authorities violated this Court's IFP Order by deducting money from his account when he had less than $10.00 in his inmate trust account. We are unpersuaded. Plaintiff attached a copy of his monthly account statement showing that on August 2, 2019, $5.01 was deducted from his inmate account when there was a negative 35 cents balance in the account. The description of the deduction was "Legal Fees (in Forma Pauperis)." ECF No. 14-1. We are not persuaded that this deduction was for this case or pursuant to any order issued by this Court.

First, we note that deductions by Inmate Account Officers for federal filing fees paid to District Courts indicate the civil case number for the case in which the fee is being paid. See 14-1 at 1 (entry of July 16, 2019). No such description was made on the fee Plaintiff is challenging herein. Secondly, no payment for this case has been received by the Clerk's Office. Furthermore, we take judicial notice that Plaintiff has filed a nearly identical motion in the United States Court of Appeals for the Third Circuit, alleging that the Inmate Accounting Officer is not complying with the Third Circuit's order assessing the PLRA payments and asserting the very same deduction made on August 2, 2019 which he complains about herein is being erroneously deducted from his account in violation of the Third Circuit Court's Order. Brown v. Green, No. 19-245 (3d Cir. Motion filed 8/9/2019). Plaintiff's nearly identical motion filed in the Third Circuit is attached hereto as Appendix II. Plaintiff cannot have it both ways. Accordingly, Plaintiff has not shown, as is his burden, the fee deduction of which he complains was pursuant to this Court's Order granting his IFP Motion or for this case.

Plaintiff's request that the fees in this case be commenced only after January 1, 2020 is DENIED. Fees will be deducted in accordance with the statutory requirements of the Prison Litigation Reform Act which direct payments to be made simultaneously for multiple suits and not sequentially. Bruce v. Samuels, ___ U.S. ___, 136 S.Ct. 627 (2016), abrogating, Siluk v. Merwin, 783 F.3d 421 (3d Cir. 2015).

Accordingly, Plaintiff's Motion, ECF No. 14, is DENIED.

SO ORDERED this 3rd day of September, 2019.

In accordance with the Magistrate Judges Act, 28 U.S.C. § 636(b)(1), and Rule 72.C.2 of the Local Rules of Court, the parties are allowed fourteen (14) days from the date of this Order to file an appeal to the District Judge which includes the basis for objection to this Order. Any appeal is to be submitted to the Clerk of Court, United States District Court, 700 Grant Street, Room 3110, Pittsburgh, PA 15219. Failure to file a timely appeal will constitute a waiver of any appellate rights.

APPENDIX I

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF PENNSYLVANIA

MEMORANDUM

I. Background

Plaintiff, an inmate formerly confined in the State Correctional Institution Huntingdon (SCI-Huntingdon), Pennsylvania1, filed the above captioned civil rights action pursuant to 42 U.S.C. §1983. (Doc. 1). The named Defendants are the following former and present employees of SCI-Huntingdon: former Superintendent Tice, Superintendent Kauffman, Unit Managers Ralston and Spyker, Grievance Coordinator Green, and Chief Grievance Coordinator Varner. Id.

Currently pending before the Court is Defendants' motion to dismiss the Plaintiff's complaint (Doc. 22) and Plaintiff's motions for injunctive relief. (Docs. 7, 32). For the following reasons, the Court will grant Defendants' motion to dismiss and dismiss Plaintiff's motions for injunctive relief as moot.

II. Allegations in Complaint

Plaintiff alleges that he came into the Department of Corrections on November, 2014 and was housed in SCI-Huntingdon in April, 2015. (Doc. 1). He claims that "while at SCI-Huntingdon, Plaintiff [was] continually exposed to tobacco items, second hand smoke and other harmful items ... by staff and inmates." Id. Plaintiff states that he is "exposed in the yard, on the unit and in other areas of SCI-Huntingdon." Id. Plaintiff "brought the exposure issue to all defendants" and the "Defendants failed to act and stop the exposure." Id. He alleges that "each time [he] is exposed he has pain in the chest, head, burning of the eyes, nose, throat, dizziness, becomes confused and an asthma attack". Id. He further claims that "due to the exposure, [he] now has a medical chronic condition, asthma and is at risk for COPD, and cancer." Id.

Plaintiff filed the instant action alleging that "Defendants deliberate indifference to the poor living conditions and exposure of tobacco items, second hand smoke, and other harmful items violates Plaintiff's constitutional rights and constitutes cruel and unusual punishment under the 8th Amendment of the United States Constitution." Id. For relief, Plaintiff seeks a transfer, as well as compensatory and punitive damages. Id.

III. Motion to Dismiss

Fed.R.Civ.P. 12(b)(6) authorizes dismissal of a complaint for "failure to state a claim upon which relief can be granted." Under Rule 12(b)(6), we must "accept all factual allegations as true, construe the complaint in the light most favorable to the plaintiff, and determine whether, under any reasonable reading of the complaint, the plaintiff may be entitled to relief." Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009) (quoting Phillips v. County of Allegheny, 515 F.3d 224, 231 (3d Cir. 2008)). While a complaint need only contain "a short and plain statement of the claim," Fed.R.Civ.P. 8(a)(2), and detailed factual allegations are not required, Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007), a complaint must plead "enough facts to state a claim to relief that is plausible on its face." Id. at 570. "The plausibility standard is not akin to a `probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully." Ashcroft v. Iqbal, 556 U.S. 662 (2009) (quoting Twombly, 550 U.S. at 556). "[L]abels and conclusions" are not enough, Twombly, 550 U.S. at 555, and a court "is not bound to accept as true a legal conclusion couched as a factual allegation." Id. (quoted case omitted).

In resolving the motion to dismiss, we thus "conduct a two-part analysis." Fowler, supra, 578 F.3d at 210. First, we separate the factual elements from the legal elements and disregard the legal conclusions. Id. at 210-11. Second, we "determine whether the facts alleged in the complaint are sufficient to show that the plaintiff has a "plausible claim for relief". Id. at 211 (quoted case omitted).

In addition, because Plaintiff complains about "prison conditions," the screening provisions of 42 U.S.C. §1997e apply, as do the screening provisions of 28 U.S.C. §1915(e), given that he was granted in forma pauperis status to pursue this suit. The court's obligation to dismiss a complaint under the PLRA screening provisions for complaints that fail to state a claim is not excused even after defendants have filed a motion to dismiss. See, e.g., Lopez v. Smith, 203 F.3d 1122, 1126 n. 6 (9th Cir. 2000). Hence, if there is a ground for dismissal which was not relied upon by a defendant in a motion to dismiss, the court may nonetheless sua sponte rest its dismissal upon such ground pursuant to the screening provisions of the PLRA. See Lopez, supra.

IV. Discussion

Res judicata "bars a plaintiff who has received a final judgment on the merits in one action from litigating another suit against the same parties based on the same cause of action." Riley v. DeCarlo, 532 F.App'x. 23, 26-27 (3d Cir. 2013) (citing CoreStates Bank, N.A. v. Huls Am., Inc., 176 F.3d 187, 194 (3d Cir. 1999)). "Whether two causes of action are identical generally depends on a consideration of (1) whether the acts complained of and the demand for recovery are the same; (2) whether the same witnesses and documents will be necessary in the trial in both cases; and (3) whether the material facts alleged are the same." Id. at 27 (citing United States v. Athlone Indus. Inc., 746 F.2d 977, 983 (3d Cir. 1984)).

The Court takes judicial notice of the following three actions filed by Plaintiff, alleging exposure to secondhand smoke at SCI-Huntingdon:

All Defendants in the current action have been named in one or more of the above captioned actions. In all actions, Plaintiff requested declaratory relief, monetary damages, and injunctive relief, including criminal prosecution, a transfer to another prison, or the removal of the defendants from their positions. Civil Action No. 3:16-CV-0609 was consolidated into Civil Action No. 3:16-CV-1031 and Civil Action No. 3:16-CV-1031 was closed on August 28, 2017, granting Plaintiff's request to voluntarily dismiss pursuant to Fed.R.Civ.P. 41(a)(2).

Civil Action No. 3:17-CV-0323, which was filed on February 15, 2017, names all the Defendants that are named in the instant action. It was dismissed on August 28, 2017, pursuant to Plaintiff's motion to dismiss, which was construed as a voluntary dismissal. Id. However, since the Plaintiff had "previously dismissed a prior action based on the same claims raised herein," the case was dismissed with prejudice and operated as an adjudication on the merits. Id.

Pursuant to Riley, all four of Plaintiff's actions are identical, in that they name the same Defendants, raise the same cause of action and seek the same recovery. Because Civil Action No. 3:17-CV-0323 was an adjudication on the merits, Plaintiff's current action is barred by res judicata and will be dismissed, with prejudice, as well.

V. Preliminary Injunction

An injunction is an "extraordinary remedy" that is never awarded as of right. Winter v. Natural Resources Defense Council, 555 U.S. 7, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008). The United States Court of Appeals for the Third Circuit has delineated four (4) factors that a district court must consider when ruling on a motion for a preliminary injunction: (1) whether the movant has shown a reasonable probability of success on the merits; (2) whether the movant will be irreparably injured if the court denies the requested relief; (3) whether granting the requested relief will result in even greater harm to the nonmoving party; and (4) whether granting the relief will be in the public interest. See Gerardi v. Pellulo, 16 F.3d 1363, 1373 (3d Cir. 1994); Hoxworth v. Blinder, Robinson & Co., 903 F.2d 186, 1970-98 (3d Cir. 1990). These same factors are used in considering a motion for temporary restraining order. Bieros v. Nicola, 857 F.Supp. 445, 446 (E.D.Pa. 1994). The moving party has the burden of satisfying these factors. Adams v. Freedom Forge Corp., 204 F.3d 475, 486 (3d Cir. 2000). While each factor need not be established beyond a reasonable doubt, they must combine to show the immediate necessity of injunctive relief. Stilp v. Contino, 629 F.Supp.2d 449, 457 (M.D.Pa. 2009) (citing Swartzwelder v. McNeilly, 297 F.3d 228, 234 (3d Cir. 2002)). In addition, "[a]s these elements suggest, there must be a `relationship between the injury claimed in the party's motion and the conduct asserted in the complaint.'" Ball v. Famiglio, 396 Fed. App'x 836, 837 (3d Cir. 2010) (quoting Devose v. Herrington, 42 F.3d 470, 471 (8th Cir. 1994)).

Moreover, the power of a court to issue injunctive relief is also limited and circumscribed by the mootness doctrine. The mootness doctrine recognizes a fundamental truth in litigation: "[i]f developments occur during the course of adjudication that eliminate a plaintiff's personal stake in the outcome of a suit or prevent a court from being able to grant the requested relief, the case must be dismissed as moot." Blanciak v. Allegheny Ludlum Corp., 77 F.3d 690, 698-99 (3d Cir. 1996).

In the instant case, Brown seeks injunctive relief in the form of a transfer from SCI-Huntingdon. However, Brown is no longer confined at SCI-Huntingdon. Subsequent to the filing of the above captioned action, Plaintiff was transferred to SCI-Mercer, where he is currently confined.

The Third Circuit Court of Appeals has observed that, when addressing inmate requests for injunctive relief:

Sutton v. Rasheed, 323 F.3d 236, 248 (3d Cir. 2003). This Court has previously held, in a case such as the present, where an inmate seeks injunctive relief against his jailers but is no longer housed at the prison where those injunctive claims arose, his transfer to another institution moots any claims for injunctive or declaratory relief. Fortes v. Harding, 19 F.Supp.2d 323, 326 (M.D. Pa. 1998). For these reasons, Plaintiff's pending motions for injunctive relief must be denied as moot since he is no longer confined at SCI-Huntingdon, and there is no indication that he will be housed at that facility in the foreseeable future.

VI. Conclusion

For the reasons stated above, the Court will grant Defendants' motion to dismiss Plaintiff's complaint as barred by the doctrine of res judicata. Plaintiff's motions for temporary restraining order and preliminary injunction will be dismissed as moot. Because Plaintiff is barred from bringing the above captioned action, his motions to amend (Docs. 28, 35) will be denied. An appropriate order shall issue.

APPENDIX II

THRID CIRCUIT COURT OF APPEALS

19-2450

(M.D. 18-0487)

BROWN V. GREEN, ETAL

MOTION TO MODIFY IN FORMA PURPERIS

Appelate file for in forma purperis in this court and this Court grant in forma purperis with leave for reconsideration, Appellatet, thus files this motion to modify in formam purperis, and state the following in support.

1. Appelate ordered to pay the full filing fee of $505.00 by this court and this court order for deduction to take place with any other ordering for filing fees.

2. Appelate has civil actions 18-0487, 19-1098 (M.D.), 19-638 (W.D), and this current appeal action, whith each of these beening deducted at 20% each time his inmate accout excees $10.00.

3. With these deductions Appellate deductions equal 80% of his monthly deductions.

4. In addition to the 80% deductions the Superintendant is making eduction to Appellate account where there is no income to his account, SEE EXHIBIT A.

5. The Superintendant is not compling with this Court's order as in the exhibit attach.

6. Appellate request this Court reconsider in forma purperis to reflict a start date for the deductions in this case, for deduction to take place after 18-0487 has been completed, and for Appelate to be ordered to make monthly payment on his own, each time his inmate account exceeds $10.00, and until the full amount is paid.

7. Appellate with be able to make payment on or before October 21, 2019.

8. Deduction at 80% will take place in August 2019.

Wherefore Appelate reqyest this court to grant this motion.

EXHIBIT A

Integrated Offender Case Management System

Monthly Account Statement