Jerry Vandiver v. Doug Vasbinder
416 F. App'x 560
6th Cir.2011Background
- Vandiver, a prisoner with diabetes and Hepatitis C, filed a pro se §1983 complaint alleging retaliation for First Amendment speech by Jackson facility officials.
- At filing, Vandiver had been transferred to Muskegon Heights but alleged he still was not receiving proper medical treatment.
- Defendants moved to revoke Vandiver’s in forma pauperis status and to dismiss under §1915(g) as strikes and for failure to allege imminent danger.
- A magistrate judge recommended dismissal as to Vandiver’s case; the district court adopted, concluding Vandiver showed no imminent danger.
- On appeal, Vandiver contends §1915(g)’s imminent danger exception requires danger only at filing or, alternatively, that his complaint pleads presently existing danger.
- The Seventh Circuit reverses, holds imminent danger must be contemporaneous with filing and Vandiver’s complaint plausibly alleges continuing imminent danger, remanding for further proceedings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether §1915(g)’s imminent danger exception requires danger at filing | Vandiver argues statute uses present tense and is not ambiguous. | Defendants argue danger need not be contemporaneous with filing; the three-strikes rule applies if no imminent danger present. | Imminent danger must exist at filing. |
| Whether Vandiver pleaded presently existing imminent danger | Complaint alleged ongoing improper treatment, indicating present danger. | District court required heightened pleading and found no imminent danger. | Complaint plausibly alleges presently existing imminent danger; remand for further proceedings. |
Key Cases Cited
- Malik v. McGinnis, 293 F.3d 559 (2d Cir. 2002) (present-tense interpretation of imminent danger)
- Ashley v. Dilworth, 147 F.3d 715 (8th Cir. 1998) (imminent danger must exist at filing)
- Abdul-Akbar v. McKelvie, 239 F.3d 307 (3d Cir. 2001) (en banc; imminent danger requirement clarified)
- Medberry v. Butler, 185 F.3d 1189 (11th Cir. 1999) (imminent danger exception recognized)
- Ibrahim v. District of Columbia, 463 F.3d 3 (D.C. Cir. 2006) (adequacy of treatment as imminent danger)
- Heimermann v. Litscher, 337 F.3d 781 (7th Cir. 2003) (unpublished decision on imminent danger interpretation)