By Mark Wilson
The Second Circuit Court of Appeals held that a lower court abused its discretion in denying a pro se prisoner leave to amend his complaint to allege an imminent danger of serious physical injury.
On August 10, 2006, New York prisoner George Chavis brought federal suit against more than three dozen prison officials, alleging “a wide variety of wrongs.” He alleged that he was beaten on August 12, 2005 by several guards and eight others “severely beat him on July 17, 2006 in retaliation for … filing grievances alleging prior misconduct by prison officials. This attack came shortly after Chavis received a threat of physical violence.”
Chavis also claimed that he was denied hepatitis B treatment, “other needed medications, supplements, and medically issued clothing,” between November 2005 and May 2006. He also alleged that medical staff member Walsh denied him “emergency medical needs and prescription refills” on “100 numerous separate dates” during an eight to ten month period.
Chavis moved for leave to proceed in forma pauperis (IFP), pursuant to 28 USC § 1915(a), but the district court denied the motion on October 23, 2006. “Under § 1915(g), a prisoner is barred from proceeding IFP if he or she has on three or more occasions ‘brought an action or appeal … that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious physical injury.’ The District Court found that Plaintiff had three such ‘strikes.’” Finding that none of Chavis’ “wholly conclusory allegations rise to the level of imminent danger of serious physical injury,” the court held that Chavis’ complaint would be dismissed unless he paid the filing fee by November 28, 2006.
Chavis moved to amend his complaint on November 8, 2006, emphasizing “that he was in fact ‘in imminent danger of physical injury.’” He did not pay the filing fee by November 28, 2006.
On February 16, 2007, Chavis moved for a preliminary injunction, again claiming that he had been subjected to “repeated verbal threats of injury/death by defendants … without cease.”
On May 10, 2007, the district court denied both motions and ordered dismissal of the complaint. “Despite Chavis’s explicit statement that he was not filing a motion for reconsideration, the District Court viewed the motion to amend as ‘in substance a motion to reconsider the October 24, 2006 Order.’” The court denied leave to amend and dismissed the complaint for failing to pay the filing fee.
The second circuit rejected Chavis’s argument that the lower court “miscounted his prior strikes, attributing two strikes to one case, in which both Chavis’s complaint and his subsequent appeal therefrom were dismissed as frivolous.” Although Chavis conceded “that the three cases on which the District Court principally relied were dismissed on grounds listed in §1915(g),” he argued “that they only count as two strikes, because a district court dismissal of a complaint and a circuit court dismissal of an appeal in the same action ‘are sequential proceedings in a single case and therefore are part of one “action” for purposes of 28 USC §1915(g).’” Therefore, Chavis argued, he had only two strikes, not three.
Noting that this was “a previously open question” in the Circuit, the court noted that every circuit to address the matter has held that sequential dismissals count as two strikes. See Jennings v. Natrona County Det. Ctr. Med. Facility, 175 F.3d 775, 780 (10th Cir. 1999); Hains v. Washington, 131 F.3d 1248, 1250 (7th Cir. 1997)(per curiam); Henderson v. Norris, 129 F3d 481, 485 (8th Cir. 1997)(per curiam); Adepegba v. Hammons, 103 F3d 383, 388 (5th Cir. 1996).”
The court relied upon the Seventh Circuit’s reasoning that “bringing an action and filing an appeal are two separate acts. One could be frivolous, the other not. Having been told that his complaint is frivolous, a prisoner must decide whether to appeal. Prisoners who learn from their mistakes will suffer one strike, at most, in a case. Obstinate or malicious litigants who refuse to take no for an answer incur two strikes. That approach not only comports with the statutory language but also fortifies the deterrence of frivolous activities in litigation.” The court therefore held that “sequential dismissals on strike grounds can provide separate strikes under §1915(g),” and “the district court rightly concluded that Chavis had three strikes.” It expressly did not hold, however, “that when an appellate court holds an appeal frivolous and states that the initial complaint also was, this constitutes two strikes in the absence of an earlier district court ruling to that effect.”
“Under §1915(g), a prisoner can proceed IFP even after incurring three strikes if his complaint alleges an ‘imminent danger of serious physical injury,’” the court noted. Given that “§1915(g) ‘concerns only a threshold procedural question,’” the court recognized that it “should not make an overly detailed inquiry into whether the allegations qualify for the exception.”
While it was a “close question” as to whether Chavis’s initial complaint alleged “imminent danger,” the court found that, “fortunately,” it did not need to “address that question, because Chavis’s complaint as he sought to amend it would seemingly have alleged imminent danger.” Therefore, the court had “no trouble concluding that the District Court abused its discretion in denying Chavis leave to amend his complaint.”
As a final matter, the court observed that it had never “decided whether a prisoner with three strikes who adequately alleges imminent danger can, in the same suit, proceed IFP on other claims that lack a nexus to imminent danger.” The court joined the four circuits to consider the question, in holding that the plaintiff may proceed with all claims when filing IFP on the basis of the imminent danger exception. See Andrews v. Cervantes, 493 F3d 1047, 1054 (9th Cir. 2007), Ibrahim v. Dist. Of Columbia, 463 F3d 3, 5-7 (DC Cir. 2006); Ciarpaglini v. Saini, 352 F3d 328, 330 (7th Cir. 2003); and Gibbs v. Roman, 116 F3d 83, 87, n.7 (3d Cir. 1997). This is so because “nothing in the text of §1915 provides any justification for dividing an action into individual claims and requiring a filing fee for those that do not relate to imminent danger.” See: Chavis v. Chappius, 618 F.3d 162 (2d Cir. 8/17/10).
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Related legal case
Chavis v. Chappius
|Cite||618 F.3d 162 (2d Cir. 8/17/10)|
|Level||Court of Appeals|