Dawn Ball v. Lt. Hummel
577 F. App'x 96
3rd Cir.2014Background
- Dawn Ball, a prisoner, appealed a district court order that revoked her in forma pauperis (IFP) status for filing civil rights claims.
- The District Court found Ball had accumulated three § 1915(g) "strikes" from prior dismissals and therefore could not proceed IFP absent imminent danger of serious physical injury when she filed the complaint.
- One prior dismissal (for absolute immunity) was later held not to count as a strike in Ball v. Famiglio, but Ball still had three strikes due to other dismissals (including an unexhausted-claims Rule 12(b)(6) dismissal).
- The District Court adopted a Report and Recommendation concluding Ball’s complaint alleged only past injuries (a January 10, 2012 cell extraction) and did not show she was in imminent danger when she filed the complaint four months later. Ball did not supplement the record below.
- On appeal Ball sought leave to proceed IFP; she alleged, at the time of the appeal, renewed threats and continued risk from the same guards. The Court granted IFP for the appeal but affirmed the district court’s revocation of IFP for the original complaint.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Ball had three § 1915(g) strikes when she filed the complaint | Ball disputed characterization of prior dismissals but prior rulings show three strikes existed | Defendants argued Ball had three strikes and so could not proceed IFP absent imminent danger | Court: Ball had three strikes when she filed the complaint |
| Whether the complaint demonstrated imminent danger of serious physical injury at time of filing | Ball's complaint described past excessive force, EBID burns, headaches, nausea, blurred vision, and sexual assault | Defendants argued allegations described past harm, not imminent risk at filing | Court: Complaint did not show imminent danger at filing; IFP properly revoked |
| Whether Ball's later allegations on appeal justify IFP for the appeal | Ball alleged renewed threats and imminent risk from the guards at time of appeal | Defendants would rely on absence of such allegations in the complaint below | Court: Allegations on appeal sufficed to permit IFP for the appeal, despite affirming revocation for the original complaint |
| Nexus requirement between claim and imminent danger | Ball argued her allegations of past and renewed abuse were connected | Defendants argued no sufficient nexus in the complaint | Court: Nexus lacking in complaint; nexus sufficient for appeal allegations |
Key Cases Cited
- Ball v. Famiglio, 726 F.3d 448 (3d Cir. 2013) (dismissal based on immunity does not count as a § 1915(g) strike)
- Abdul-Akbar v. McKelvie, 239 F.3d 307 (3d Cir. 2001) (explaining § 1915(g) three-strikes rule for prisoners)
- Pettus v. Morgenthau, 554 F.3d 293 (2d Cir. 2009) (requirement of nexus between imminent danger allegations and claims pursued)
- Chavis v. Chappius, 618 F.3d 162 (2d Cir. 2010) (recent brutal beating plus repeated threats can satisfy imminent danger exception)