Boles v. CDOC ( 2019 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT December 9, 2019
_________________________________
Elisabeth A. Shumaker
Clerk of Court
RUSSELL M. BOLES,
Plaintiff - Appellant,
v. No. 19-1314
(D.C. No. 1:19-CV-01158-LTB)
COLORADO DEPARTMENT OF (D. Colo.)
CORRECTIONS; CHARLENE
CROCKET; KRISTY HOLJENIN;
MAJOR ZWIRN; RABBI YISROEL
ROSSKAMM; CAPTAIN KENNETH
PHIPPS; CAPTAIN CYRUS
CLARKSON; LT. IAN BARNES; LT.
TAYLOR; LT. MATTHEW POWELL;
LT. DERRICK ROBERTS; DOCTOR
BRYAN REICHERT; GARY WARD;
REIDER MAY; NICOLE WILSON; DOC
ACCOUNTING PERSONNEL; GTL;
CAPTIAIN J. DORCEY; LT. CUSTER;
MS. FULLER; LIEUTENANT SHAWNA
NYGAARD,
Defendants - Appellees.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before MATHESON, McKAY, and BACHARACH, Circuit Judges.**
*
This order and judgment is not binding precedent, except under the doctrines
of law of the case, res judicata, and collateral estoppel. It may be cited, however, for
its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
**
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument.
_________________________________
Plaintiff Russell Boles, a state prisoner proceeding pro se, filed a complaint in
the district court against the Colorado Department of Corrections and numerous
prison officials, asserting violations of his rights under the Constitution and federal
law. On the same day, Plaintiff filed a motion to proceed in forma pauperis pursuant
to 28 U.S.C. § 1915. The magistrate judge noted that Plaintiff had accrued three
“strikes,” meaning that, while incarcerated, he had previously brought three civil
actions or appeals in federal courts that were dismissed as frivolous or for failure to
state a claim. Accordingly, the magistrate judge ordered Plaintiff to show cause why
his IFP motion should not be denied under § 1915(g), which prohibits prisoners who
have three or more strikes from proceeding IFP or bringing further actions without
pre-paying the filing fee.
In response, Plaintiff did not contest that he had accrued three strikes but,
instead, asserted that he fit under an exception to the filing restriction, namely that he
was “under imminent danger of serious physical injury.” 28 U.S.C. § 1915(g). After
reviewing Plaintiff’s submissions, however, the district court determined that he had
offered only “vague and conclusory allegations in support of” his assertion of
imminent danger and that he had “fail[ed] to link the alleged imminent danger to
[his] claims.” (R. at 50–51.) Accordingly, the court denied the IFP motion and
ordered Plaintiff to pay the filing fee within a certain time.1 When Plaintiff failed to
1
The court also denied a subsequent motion for reconsideration because the
court “remain[ed] convinced” that Plaintiff had put forward only “vague and
2
timely pay the fee, the court dismissed the action without prejudice pursuant to Fed.
R. Civ. P. 41(b) and entered judgment for Defendants.2 Plaintiff timely appealed.
On appeal, Plaintiff filed a motion to proceed IFP. Like the magistrate judge,
we noted that Plaintiff has accrued three strikes and ordered him to show cause why
the appeal should not be dismissed for failure to prepay the filing fee or why the
filing restriction does not apply. In his response to the show-cause order, as in the
district court, Plaintiff did not contest the three strikes but instead asserted that he is
under imminent danger of serious physical injury. We deferred ruling on Plaintiff’s
IFP motion and allowed him to file a brief on the merits.
As a threshold issue, before addressing the merits, we must determine whether
§ 1915(g) prevents us from considering Plaintiff’s appeal. See Dopp v. Larimer, 731
F. App’x 748, 750–52 (10th Cir. 2018). “The ‘three strikes’ provision of the [IFP]
statute applicable to indigent prisoners requires so-called ‘frequent filer’ prisoners to
prepay the entire filing fee before federal courts may consider their civil actions and
appeals.” Hafed v. Fed. Bureau of Prisons, 635 F.3d 1172, 1176 (10th Cir. 2011)
(internal quotation marks and brackets omitted), abrogated on other grounds by
conclusory,” rather than “specific and credible[,] factual allegations demonstrating
imminent danger of serious physical injury.” (R. at 64.)
2
Following the denial of his motion for reconsideration, Plaintiff filed an
amended complaint, which the court understood “to be another attempt to establish
imminent danger of serious physical injury.” (R. at 92.) The court nonetheless
“remain[ed] convinced” that the “vague and conclusory allegations” in the amended
complaint were “not specific and credible factual allegations demonstrating imminent
danger of serious physical injury.” (Id.) The court therefore dismissed the amended
complaint.
3
Coleman v. Tollefson, 135 S. Ct. 1759 (2015). “There is only one exception to the
prepayment requirement in § 1915(g), and it applies to a prisoner who ‘is under
imminent danger of serious physical injury.’” Id. at 1179 (internal citation omitted)
(quoting § 1915(g)). “[A] prisoner qualifies for the exception if he makes ‘specific,
credible allegations of imminent danger of serious physical harm.’” Dopp, 731 F.
App’x at 751 (quoting Hafed, 635 F.3d at 1179). “Allegations in the complaint [or
appeal] of ‘imminent danger’ must not be ‘vague and utterly conclusory.’” Stine v.
U.S. Fed. Bureau of Prisons, 465 F. App’x 790, 792 (10th Cir. 2012) (quoting White
v. Colorado, 157 F.3d 1226, 1231 (10th Cir. 1998)). Thus, if a prisoner relies on
allegations of deliberate indifference to a medical need to satisfy the imminent-
danger exception, “‘he should make a specific reference as to which of the
defendants may have denied him what medication or treatment for what ailment on
what occasion,’” id. at 793 (internal quotation marks omitted) (quoting Hafed, 635
F.3d at 1180), and “identify at least ‘the general nature of the serious physical injury
he asserts is imminent,’” Hafed, 635 F.3d at 1180 (internal quotation marks omitted)
(quoting White, 157 F.3d at 1232).
Further, “an inmate seeking the imminent danger exception must show ‘a
nexus between the imminent danger [he] alleges . . . and the legal claims asserted.’”
Lomax v. Ortiz-Marquez, 754 F. App’x 756, 759 (10th Cir. 2018) (quoting Pettus v.
Morgenthau, 554 F.3d 293, 297 (2d Cir. 2009)); see also Day v. Maynard, 200 F.3d
665, 667 (10th Cir. 1999) (concluding that assertion of imminent danger at one prison
is insufficient when prisoner’s claims relate only to actions by officials in a different
4
prison). Determining if a sufficient nexus exists involves considering “whether the
imminent danger of serious physical injury” alleged is “fairly traceable to unlawful
conduct asserted in the complaint” or appeal and “whether a favorable judicial
outcome would redress that injury.” Lomax, 754 F. App’x at 759 (internal quotation
marks and emphases omitted).
A three-strikes prisoner must sufficiently allege imminent danger in a trial
court at the time his complaint is filed and in an appellate court at the time his appeal
is filed. See Dopp, 731 F. App’x at 750–51; Hafed, 635 F.3d at 1179. Although a
prisoner should advance his allegations of imminent danger in his IFP motion, courts
may also look to other filings as well, bearing in mind that prisoners seeking IFP
status are almost always proceeding pro se. See Hafed, 635 F.3d at 1180. In
determining if a prisoner’s allegations are sufficient to meet the imminent-danger
exception, we construe his filings liberally and accept his well-pled allegations as
true, see Davis v. Rice, 299 F. App’x 834, 835 (10th Cir. 2008), and we require only
that his allegations facially satisfy the threshold showing that the imminent-danger
exception applies, see Fuller v. Myers, 123 F. App’x 365, 367–68 (10th Cir. 2005).
Liberally construed, Plaintiff’s appellate filings allege the following. Plaintiff
has a lengthy history of irritable bowel syndrome, which has been diagnosed and
documented in the Department of Corrections’s own records. The standard treatment
for his condition is a fresh-food diet. Despite Plaintiff’s complaints, Defendants
Kristy Holjenin and Charlene Crocket, who are responsible for prisoners’ diets, have
refused to provide him a fresh-food diet and have instead provided him food that he
5
cannot digest and that causes him “excruciating pain,” prompting him to forego
meals altogether.3 (Answer to Order to Show Cause at 2.) Defendant Doctor Bryan
Reichert has refused to prescribe a fresh-food diet, or to otherwise treat Plaintiff’s
IBS other than by prescribing fiber supplementation, based on medical tests that
Plaintiff asserts are irrelevant. Aside from severe pain, his untreated IBS, along with
a lack of digestible food, has also resulted in aggravation of a degenerative bone
condition and swelling in his legs.
These allegations facially satisfy the threshold requirement to show that
Plaintiff is under imminent danger of serious physical injury. Plaintiff has specified
which of the Defendants (Holjenin, Crocket, and Reichert) denied him what
treatment (a fresh-food diet) for what ailment (IBS) on what occasion (after he
complained to Holjenin and Crocket and sought treatment from Reichert, and
continuing into the present), and he has identified the general nature of the alleged
imminent physical injuries (severe pain, aggravated bone degeneration, and leg
swelling resulting from untreated IBS and an undigestible diet). See Stine, 465 F.
App’x at 793; Hafed, 635 F.3d at 1180, White, 157 F.3d at 1232. These allegations
are not vague or utterly conclusory but are instead specific, credible allegations of
imminent danger of serious physical injury. See Dopp, 731 F. App’x at 751; Stine,
465 F. App’x at 792; White, 157 F.3d at 1231. “[W]e have previously held that a
3
Although portions of Plaintiff’s brief might be read to suggest that prison
officials provide him no food whatsoever, other portions of the brief and his other
filings clarify that Plaintiff has opted to not eat the food he is provided at least in part
to avoid the pain resulting from a non-fresh-food diet.
6
plaintiff’s particularized ‘allegations that Defendants have displayed a deliberate
indifference toward his serious medical needs and denied him adequate medical
treatment are sufficient to facially establish the . . . imminent and serious danger
requirement for proceeding IFP.’” Dopp, 731 F. App’x at 751 (quoting Davis. v.
GEO Grp. Corr., Inc., 696 F. App’x 851, 855 (10th Cir. 2017)); see Fuller v. Myers,
123 F. App’x at 367 (“[D]eliberate indifference to a prisoner’s serious medical
conditions has been found to satisfy the [imminent-danger] requirement.” (citing
Hunt v. Uphoff, 199 F.3d 1220, 1222 (10th Cir. 1999))). Indeed, we have regularly
held that specific allegations, roughly similar to Plaintiff’s, of prison officials
refusing to treat a prisoner’s chronic condition that causes severe pain or aggravates
debilitating symptoms are enough to facially satisfy the imminent-danger exception.4
4
See, e.g., Dopp, 731 F. App’x at 751–52 (holding allegations of
“inadequately treated” and “worsening” “spinal condition . . . causing . . . unbearable
pain” were sufficient); Davis v. GEO Grp., 696 F. App’x at 854–55 (holding
allegations that prisoner “has long suffered from substantial and chronic back pain,”
“cannot sit or stand for extended periods without being in terrible pain,” “experiences
a constant grinding in his neck and popping in his back,” and has numbness in his
limbs “whenever he tries to sleep on his side” were sufficient when prisoner also
alleged officials diagnosed him with degenerative disease but provided inadequate
treatment and refused to refer him to a specialist who might offer adequate
treatment); id. at 855 (collecting cases); Stine, 465 F. App’x at 794–96 (holding
allegations that prisoner suffers “reflux of blood, pain when he eats or talks, reduced
ability to swallow without pain, and permanent damage to his esophagus lining”
unless given a drug which officials refused to provide were sufficient (internal
citations, quotation marks, and brackets omitted)); id. at 794 (collecting cases); cf.
Fuller v. Myers, 123 F. App’x at 366–67 (holding allegations of “breathing
difficulties and other respiratory problems,” “[s]evere headaches, watery eyes, dust
and lint in [the prisoner]’s mucous, [and] nose bleeds” caused by officials’ refusal to
clean the prison’s ventilation system were sufficient).
7
Further, Plaintiff has shown a sufficient nexus between the imminent danger
he alleges and the claims at issue on appeal. Plaintiff asserts that the district court
erred by dismissing his claim, among others, that Defendants are violating his Eighth
Amendment rights by being deliberately indifferent to his serious medical needs.5
Specifically, Plaintiff alleges Defendants refuse to provide adequate medical
treatment for his IBS and related conditions by failing to prescribe or offer him a
fresh-food diet. He asks that his “case [be] sent back to District Court” “[s]o the
court may compel the [prison] officials to provide the current standard
accommodations they are not currently providing.” (Appellant’s Br. at 4, 12.) Thus,
the imminent danger of serious physical injury Plaintiff alleges (harm resulting from
inadequate treatment of IBS) is fairly traceable to the unlawful conduct he asserts on
appeal (deliberate indifference to his IBS condition), and a decision in his favor
(remand to the district court where his claim, if proved, might be redressed) could
redress that injury. See Lomax, 754 F. App’x at 759.
5
Plaintiff’s complaint contains several claims that are either unrelated, or only
tangentially related, to his IBS condition. The claim that is related to his IBS
condition, however, is sufficient, as the imminent-danger exception is not evaluated
on a claim-by-claim basis. See Andrews v. Cervantes, 493 F.3d 1047, 1053–54 (9th
Cir. 2007) (“[O]nce a prisoner satisfies the exception to the three-strikes rule and
otherwise qualifies for IFP status, the district court must docket the entire complaint
and resolve all of its claims . . . [even if] a number of the claims in [the] suit
unquestionably d[o] not allege an imminent danger of serious physical injury.”);
Chavis v. Chappius, 618 F.3d 162, 171–72 & n.7 (2d Cir. 2010) (reaching same
conclusion and noting that all circuit courts to have considered this issue have held
likewise, with citations to Andrews and cases from three other circuits).
8
Because Plaintiff has satisfied the imminent-danger requirement, he may
proceed IFP in this appeal. We now turn to the merits.
Plaintiff asserts the district court erred in determining he had failed to satisfy
the imminent-danger requirement, which ultimately resulted in dismissal. The
allegations of imminent danger Plaintiff raised in the district court are the same
allegation he raises in this appeal. Those allegations should have been as sufficient
in the district court as they are here.6
6
The standard of review applicable to a district court’s determination as to
whether the imminent-danger exception applies remains unsettled. At least two of
our unpublished decisions have suggested the abuse-of-discretion standard applies.
See Davis v. Rice, 299 F. App’x at 835; Bakalov v. McCotter, 141 F.3d 1184 (table),
1998 WL 165119, at *1 (10th Cir. 1998). However, at least three unpublished
decisions have vacated a denial of IFP status after conducting what seems to be a de
novo assessment of the imminent-danger allegations and apparently concluding that,
if the allegations are sufficient for purposes of appellate IFP status, they are also
sufficient for purposes of IFP status in the district court. See Davis v. GEO Grp., 696
F. App’x at 853–56; Fuller v. Wilcox, 288 F. App’x 509, 510–11 (10th Cir. 2008);
Fuller v. Myers, 123 F. App’x at 366–68. Decisions from other circuits are not
helpful. A few circuits, like our circuit, seem not to apply a consistent standard.
Compare, e.g., Jones v. U.S. Nat’l Fed. Debt Contractors, No. 18-12570-D, 2019 WL
2567721, at *1 (11th Cir. Feb. 13, 2019) (de novo), and Fourstar v. Eckroth, 512 F.
App’x 127, 127 (3d Cir. 2013) (de novo), and Andrews, 493 F.3d at 1052 (de novo),
with Brown v. Wolf, 705 F. App’x 63, 66–67 (3d Cir. 2017) (abuse of discretion), and
Barber v. Krepp, 680 F. App’x 819, 821 (11th Cir. 2017) (abuse of discretion), and
Bradford v. Ogbuehi, 683 F. App’x 634, 635 (9th Cir. 2017) (abuse of discretion). A
majority of the remaining circuits appear to apply a de novo standard. See Shepherd
v. Annucci, 921 F.3d 89, 93 (2d Cir. 2019); Wallace v. Baldwin, 895 F.3d 481, 483
(7th Cir. 2018); Coleman v. Crawford, 571 F. App’x 502, 502 (8th Cir. 2014); Chase
v. O’Malley, 466 F. App’x 185, 186 (4th Cir. 2012); Foster v. Unidentified Party, 34
F. App’x 963, 963 (5th Cir. 2002). But see Vandiver v. Prison Health Servs., Inc.,
727 F.3d 580, 585 (6th Cir. 2013) (applying abuse-of-discretion standard). However,
their decisions do not offer much reasoning for the choice. We decline to determine
here the appropriate standard of review because, under either standard, we would
reach the same decision.
9
Accordingly, we GRANT Plaintiff’s motion to proceed IFP in this appeal,
VACATE the district court’s order dismissing the action, VACATE the district
court’s order denying Plaintiff’s motion to proceed IFP, and REMAND the case to
the district court for further proceedings. In so doing, we express no opinion as to
the ultimate merits of this case.
Entered for the Court
Monroe G. McKay
Circuit Judge
10