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4th Circuit: Prisoner Alleges Sufficient Facts to Establish Imminent Danger, Permitted to Proceed Despite Three Prior “Strikes”

In an unpublished per curiam opinion decided September 2006, the Fourth Circuit vacated a district court order dismissing a prisoner’s civil rights complaint pursuant to 28 U.S.C. §1915(g) on the ground that three of the prisoner’s prior filings had been dismissed as frivolous or malicious or for failure to state a claim – such dismissals are referred to as “strikes” – and the prisoner had failed to show that he was in imminent danger of serious physical injury. The court of Appeals held that the prisoner had in fact alleged facts sufficient to establish the presence of imminent danger.

In a detailed complaint filed in 2005, prisoner Kevin Johnson alleged that subsequent to being assigned to Virginia’s “supermax” prison in 1999, he was threatened with severe bodily injury or death if he persisted in litigation. The complaint further alleged that the defendant prison officials periodically made good on their threats, subjecting him to unprovoked assaults, electrocution, and serious injuries, including a concussion, and that as a result Johnson lived in perpetual fear of being assaulted.

Rejecting the district court’s conclusion to the contrary, the Fourth Circuit held that the facts alleged in Johnson’s complaint sufficed to establish the existence of an imminent danger of serious physical harm. The court further held that the same facts sufficed to state a claim of an Eighth Amendment violation. Accordingly, it vacated the district court’s judgment, with directions that Johnson be permitted to proceed without prepayment of fees. See: Johnson v. Warner, 200 Fed.Appx. 270 (4th Cir. 2006) (unpublished).

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Related legal case

Johnson v. Warner