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DC Circuit Court: “Three Strike” Prisoners Must Show Imminent Danger to File Lawsuits

The court’s July 7, 2020, opinion was issued in appeals brought by Jeremy Pinson and Michael S. Gorbey. Both are considered “three-strikers” under the PLRA’s informa pauperis provision. 28 U.S.C. § 1915(g) allows prisoners to proceed by paying the filing fee in installments over time, but it requires the fee to be paid in full if a prisoner has “on 3 or more occasions” had a “civil action or appeal” of a civil judgment “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.”

At issue was whether in determining the applicability of the imminent danger exception on appeal, is the focus on the relevant conditions at the time of bringing the action in the district court or at the time of bringing the appeal? The court held the “or” in “civil action or appeal” requires disjunctive construction.

As such, § 1915(g) “requires prisoner-litigants proceeding under the exception to demonstrate that they faced imminent danger both at the time they file their lawsuit and at the time they notice their appeal.” The court said it will not consider “developments” that occur “post-complaint” or “post-appeal.”

The court, however, concluded it was proper to “consider imminent danger allegations newly offered on appeal.” The court further concluded that there must be a nexus between the harms alleged and the claims made in the complaint. In other words, if the relief sought does not cure the imminent danger alleged, then the imminent danger exception does not apply.

Related legal case

Pinson v. United States DOJ