964 F.3d 65
D.C. Cir.2020Background
- Both Michael Gorbey and Jeremy (or Jeri) Pinson are "three-strike" prisoners under 28 U.S.C. § 1915(g) who sought to proceed in forma pauperis (IFP) on appeal by invoking the § 1915(g) imminent-danger exception.
- The PLRA’s three-strikes rule bars IFP for prisoners with three prior dismissals as frivolous/malicious/failing to state a claim, unless they are "under imminent danger of serious physical injury."
- District courts denied the prisoners’ IFP requests; each sought appellate IFP status and the D.C. Circuit issued show-cause orders and referred the matters to a merits panel.
- Gorbey alleged ongoing BOP conditions (top bunk without ladder, cancelled glaucoma care, mold exposure, broken shoes) but brought FTCA claims against federal judges unrelated to those conditions.
- Pinson alleged threats and assaults tied to cooperation with law enforcement, retaliatory transfers, and interference with legal access; many of her relevant allegations pre- or post-dated the November 2018 notice of appeal.
- The primary legal questions were whether the imminent-danger showing must exist at the time of the appeal, whether a nexus is required between the alleged danger and the claims, and whether Pinson can bring an as-applied constitutional challenge to § 1915(g).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| 1. Temporal point for imminent-danger showing on appeal | Imminent-danger should be judged based on district-court filing conditions (or continue from district findings) | Must show imminent danger at time of noticing the appeal | Must show imminent danger at the time the appeal is noticed (separate showing from district filing) |
| 2. Can imminent-danger allegations be raised first on appeal and how to evaluate them | Plaintiffs may submit new allegations on appeal; courts should accept timely allegations as true | Government urged scrutiny and consideration of other courts’ rejections | New allegations may be considered on appeal; courts generally accept timely factual allegations as true for screening purposes |
| 3. Nexus requirement between alleged danger and the claims | Amicus: only require relation between merits claims and alleged harm; plaintiffs sought broad reading | Government: must be fairly traceable and redressable by the requested relief | Nexus required: the alleged imminent danger must be related to and redressable by the claims sought to be litigated |
| 4. Pinson’s as-applied constitutional challenge to § 1915(g) | § 1915(g) as applied here denies meaningful access to courts for vindication of fundamental rights | Government: no constitutional violation here because Pinson is not totally foreclosed from pursuing her claims | As-applied challenge fails: Pinson has not been totally foreclosed (her underlying claims remain pending), so no present denial of meaningful access |
Key Cases Cited
- Asemani v. United States Citizenship & Immigration Services, 797 F.3d 1069 (D.C. Cir. 2015) (imminent-danger exception applies to appeals; timing question addressed)
- Pinson v. Samuels, 761 F.3d 1 (D.C. Cir. 2014) (focused on imminent-danger showing at the time of bringing the action)
- Williams v. Paramo, 775 F.3d 1182 (9th Cir. 2015) (presumption that district-court finding of imminent danger may continue at time of appeal if supported)
- Coleman v. Tollefson, 135 S. Ct. 1759 (2015) (statutory interpretation of § 1915(g) to be informed by text, structure, and purpose)
- Pettus v. Morgenthau, 554 F.3d 293 (2d Cir. 2009) (imminent-danger exception designed as limited safety valve to prevent future harms)
- Abdul-Akbar v. McKelvie, 239 F.3d 307 (3d Cir. 2001) (describing the limited purpose of the imminent-danger exception)
- In re Green, 669 F.2d 779 (D.C. Cir. 1981) (conditioning future IFP access can, in some circumstances, deny meaningful access to courts)
- Jones v. Bock, 549 U.S. 199 (2007) (context on PLRA’s purpose to filter meritless prisoner claims)
- Broudy v. Mather, 460 F.3d 106 (D.C. Cir. 2006) (framework for denial-of-access claims: need arguable underlying claim and present foreclosure)
- Christopher v. Harbury, 536 U.S. 403 (2002) (requirements for a denial-of-access claim)
- Lewis v. Casey, 518 U.S. 343 (1996) (denial-of-access requires an arguable underlying claim attacking sentence or conditions)
Outcome: The court denied both Gorbey’s and Pinson’s IFP requests on appeal—Gorbey for lack of nexus between alleged dangers and his claims; Pinson for failing to show imminent danger at the time of her appeal—and rejected Pinson’s as-applied constitutional challenge for lack of present total foreclosure. They were given 30 days to pay full fees or their appeals will be dismissed.