A Jailhouse Lawyer's Manual Chapter 14 - Columbia Law School

contrary to the statute, which seems intended to hold prisoners responsible for their own
legal claims, but not for those of other persons. 129
(a) The “Imminent Danger of Serious Physical Injury” Exception
The three strikes provision does not bar a prisoner from proceeding in forma pauperis if
he is in “imminent danger of serious physical injury.” 130 The existence of such a danger is
assessed as of the time of filing suit or when the prisoner makes an in forma pauperis
application in the district court or on appeal. 131
Any credible allegation of imminent danger of serious physical injury meets the statutory
requirement, 132 but many allegations have been dismissed as incredible or insubstantial. 133 If
lawsuit). The court does not claim to find the basis for its holding in the statutory language; rather, it
says it is interpreting a Seventh Circuit opinion remanding the case, and expresses hope that the court
of appeals will clarify the matter. That has not happened.
129. See Swenson v. McDonald, No. CV 05-93-GF-CSO, 2006 WL 240233, at *3–4 (D. Mont. Jan.
30, 2006) (unpublished) (criticizing logic of Boriboune). Swenson points out that Boriboune’s imposition
of strikes based on the separate claims of individual plaintiffs contradicts the statute’s reference to
“action[s]” rather than claims; that its view that each prisoner litigant is responsible under Rule 11 for
statements other plaintiffs make is inconsistent with the lack of authority of pro se litigants to make
representations for anyone other than themselves and with pro se prisoners’ limited ability to
investigate the merits of others’ claims; and that the practical difficulties of multi-plaintiff prisoner
litigation does not lend itself to assuming one litigants’ responsibility for all actions and decisions in
such litigation.
130. 28 U.S.C. § 1915(g) (2000). See Miller v. Donald, 541 F.3d 1091, 1098–99 (11th Cir. 2008)
(rejecting district court practice of barring prisoners with three strikes from filing under “imminent
danger of serious physical injury” exception if they have not paid filing fees owed from previous cases)
131. Polanco v. Hopkins, 510 F.3d 152, 156 (2d Cir. 2007) (rejecting argument that time-of-filing
rule denies court access to those who cannot get their claims in during the time they are in danger);
Ibrahim v. District of Columbia, 463 F.3d 3, 6–7 (D.C. Cir. 2006); Heimermann v. Litscher, 337 F.3d
781, 782 (7th Cir. 2003); Martin v. Shelton, 319 F.3d 1048, 1050 (8th Cir. 2003); Malik v. McGinnis, 293
F.3d 559, 562–63 (2d Cir. 2002); Abdul-Akbar v. McKelvie, 239 F.3d 307, 312–16 (3d Cir. 2001) (en
banc); Ashley v. Dilworth, 147 F.3d 715, 717 (8th Cir. 1998) (all holding danger must exist at the time
of filing the complaint); see also Medberry v. Butler, 185 F.3d 1189, 1192–93 (11th Cir. 1999) (rejecting
idea that imminent danger is measured at time of incident, but not deciding whether time of filing or
IFP motion is appropriate rule); Banos v. O’Guin, 144 F.3d 883, 884–85 (5th Cir. 1998) (per curiam)
(holding danger must exist at time of filing or time of IFP motion).
Some courts have gone so far as to say that a danger that arose after the case was filed, and was
ongoing, did not fit the exception. Trice v. Vazquez, No. CIVA CV206-185, 2006 WL 3191175, at *2
(S.D. Ga. Nov. 1, 2006) (unpublished); see Peterson v. Perdue, No. CV 108-097, 2008 U.S. Dist. LEXIS
74948, at *1 n.1, *3 (S.D. Ga. Aug. 21, 2008) (unpublished) (magistrate judge held alleged threat of
sexual assault did not meet standard because plaintiff had not been assaulted or injured; district judge
held subsequent sexual assault did not meet standard because it occurred after filing).
132. See Ciarpiaglini v. Saini, 352 F.3d 328, 330–31 (7th Cir. 2003) (holding allegations of panic
attacks leading to heart palpitations, chest pains, labored breathing, choking sensations, and paralysis
meet the imminent danger standard; disapproving extensive inquiry into seriousness of allegations at
pleading stage); White v. Colorado, 157 F.3d 1226, 1232 (10th Cir. 1998) (rejecting claim because
plaintiff failed to raise a credible allegation of imminent danger of serious physical harm); see also
Andrews v. Cervantes, 493 F.3d 1047, 1050 (9th Cir. 2007) (“the three-strikes rule is a screening device
that does not judge the merits of prisoners’ lawsuits”); Lewis v. Sullivan, 279 F.3d 526, 531 (7th Cir.
2002) (stating that the exception applies “[w]hen a threat or prison condition is real and proximate, and
when the potential consequence is ‘serious physical injury’”).
133. See, e.g., Merriweather v. Reynolds, No. 2:07-3418-PMD-RSC, 2008 U.S. Dist. LEXIS 38175,
at *9 (D.S.C. May 11, 2008) (unpublished) (rejecting allegations of threats, enemies, danger from prison
gangs, etc.; “unsupported, vague, self-serving, conclusory speculation” does not establish imminent
danger); Robinson v. Mawer, No. 1:08-cv-353, 2008 U.S. Dist. LEXIS 36126, at *4–6 (W.D. Mich. May 2,
2008) (unpublished) (holding claim that prisoner’s hand was broken and he couldn’t defend himself
against assault did not allege imminent danger because there was no showing that he would