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Sixth Circuit Defines ‘Serious Physical Injury’ for 28 U.S.C. § 1915(g) Purposes

by Douglas Ankney

 The U.S. Court of Appeals for the Sixth Circuit has defined the term “serious physical injury” in the text of 28 U.S.C. § 1915(g). Michael Gresham is a state prisoner serving a 75-year sentence in a Michigan prison. He filed a § 1983 action against several prison employees, alleging that they forced him to take antipsychotic medication that causes him to experience “chest pains, akathisia [muscular restlessness], seizures, vomiting, stomach cramps, and dizz[iness].” Gresham requested to proceed in forma pauperis in prosecuting his suit, but the district court denied his request because Gresham had previously filed more than three lawsuits that had been dismissed as “frivolous, malicious, or failed to state a claim.”

The district court concluded Gresham must pay the $400 filing fee if he wants to proceed with his suit. Gresham appealed, arguing that the exception of § 1915(g) applied to his case.

The Sixth Circuit observed that, ordinarily, anyone who files a lawsuit in federal court must pay a $400 filing fee. 28 U.S.C. § 1914. But individuals who cannot afford the fee may ask to proceed “in forma pauperis” or “as a poor person” to avoid filing fees and other court costs. Id. § 1915.

However, prisoners who abuse that privilege may have it removed from them. Prisoners become ineligible for in forma pauperis status if the courts have dismissed three or more of their lawsuits as “frivolous, malicious, or for failure to state a claim.” Id. § 1915(g). This is known as the “three-strikes rule.”

Poor prisoners can be freed from the three-strikes rule if they are “under imminent danger of serious physical injury.” Id. To be eligible for the exception, prisoners must plausibly allege such a danger. Vandiver v. Prison Health Servs., Inc., 727 F.3d 580 (6th Cir. 2013). “Injury” requires some sort of “loss, hurt, or detriment.” Webster’s Third New International Dictionary 1164 (2002). “Physical” requires a prisoner to connect the injury to concrete manifestations in the body as opposed to purely emotional or psychological harm. Sanders v. Melvin, 873 F.3d 957 (7th Cir. 2017). But the meaning of “serious” is less straightforward. General dictionaries define it as: “to cause considerable distress, anxiety, or inconvenience,” Webster’s Third New International Dictionary 2073 (2002); or “being of such import as to cause anxiety; serious injury,” American Heritage Dictionary 1590 (4th ed. 2000). But every physical injury is prone to cause anxiety, and to abide by that definition alone would “blot” the three-strikes rule from the statute. Sanders.

Other sources provide more useful metes and bounds. Black’s defined “serious” in relation to an injury as “dangerous; potentially resulting in death or other severe consequences.” Black’s Law Dictionary 1371 (7th ed. 1999). The Model Penal Code has long defined “serious bodily injury” as that which “creates a substantial risk of death or which causes serious, permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ.” Model Penal Code § 210.0.

And the Sentencing Guidelines define “serious bodily injury” as “injury involving extreme physical pain or the protracted impairment of a function of a bodily member, organ, or mental faculty; or requiring medical intervention such as surgery, hospitalization, or physical rehabilitation.” U.S.S.G. § 1B1.1. The Sixth Circuit concluded that these sources led to a workable rule: A serious physical injury for purposes of § 1915(g) is one that has potentially dangerous consequences such as death or severe bodily harm.

The Court determined Gresham’s injuries did not meet that rule. His symptoms could cause discomfort and pain for sure, but they were temporary and rarely life threatening. And it was especially so in Gresham’s case where the medication was given under the watchful eye of medical professionals. Further, Gresham did not allege how his complaints could lead to impending death or other severe bodily harms while under medical supervision. And while one could hypothesize scenarios in which some of Gresham’s symptoms could lead to “serious physical injury,” the Court isn’t permitted to speculate about risks and injuries Gresham could have raised but did not. Sanders.

The Sixth Circuit ruled that the district court correctly concluded that Gresham was subject to the three-strikes rule. Accordingly, the Court affirmed the decision of the district court. See: Gresham v. Meden, No. 18-1911 (6th Cir. 2019).

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Related legal case

Gresham v. Meden