Maisano v. United States Attorney General
Civil Action No. 2016-2279
| D.D.C. | Aug 4, 2017Background
- Plaintiff Dale F. Maisano is a prisoner with a history of abusive litigation: he has accumulated at least three "strikes" under 28 U.S.C. § 1915(g) for prior dismissals as frivolous, malicious, or for failure to state a claim.
- Maisano is subject to injunctions entered by Arizona federal courts that bar him from filing civil actions in federal court without leave of court.
- Maisano filed the present civil action and sought in forma pauperis (IFP) status to proceed without prepaying the filing fee.
- Under the PLRA, prisoners with three or more strikes may not proceed IFP unless they are "under imminent danger of serious physical injury."
- The Court evaluates imminent danger based on the complaint as of its filing and construes allegations liberally.
- The complaint here did not allege facts demonstrating imminent danger; the Court denied IFP and dismissed the action without prejudice, warning that future filings that attempt to circumvent the Arizona injunctions will be looked upon unfavorably.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Maisano may proceed IFP despite three strikes under §1915(g) | Maisano sought IFP to avoid prepaying filing fee | Defendants relied on PLRA §1915(g) and Maisano's three strikes and injunctions | Denied: Maisano cannot proceed IFP absent imminent danger |
| Whether Maisano alleges imminent danger of serious physical injury | Maisano's complaint implicitly or expressly alleged threats/risks (not persuasively) | Defendants argued complaint lacks factual allegations showing imminent danger | Held: Complaint's allegations do not demonstrate imminent danger at time of filing |
| Whether court should assess danger based on complaint at filing and construe liberally | Maisano relied on liberal construction of pro se filings | Defendants urged strict application of §1915(g) standard as construed by D.C. Circuit | Held: Court applied D.C. Circuit approach—assess danger at filing and construe liberally—but still found no imminent danger |
| Whether prior injunctions/bar on filings alter disposition | Maisano attempted to proceed despite Arizona injunctions | Defendants pointed to injunctions and prior attempts to circumvent them | Held: Court noted injunctions and warned against circumvention; will view future filings with disfavor |
Key Cases Cited
- Asemani v. U.S. Citizenship & Immigration Servs., 797 F.3d 1069 (D.C. Cir. 2015) (prisoner may pay filing fee in installments under PLRA but IFP is barred by §1915(g) absent imminent danger)
- Mitchell v. Fed. Bureau of Prisons, 587 F.3d 415 (D.C. Cir. 2009) (imminent danger must be assessed based on the complaint at the time of filing)
- Ibrahim v. District of Columbia, 463 F.3d 3 (D.C. Cir. 2006) (pro se complaints are construed liberally when assessing claims and allegations)