Lawrence Martin v. Roger Shelton , 319 F.3d 1048 ( 2003 )


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  •                      United States Court of Appeals
    FOR THE EIGHTH CIRCUIT
    ___________
    No. 02-2770
    ___________
    Lawrence Martin,                     *
    *
    Plaintiff - Appellant,         *
    *
    v.                             *
    * Appeal from the United States
    Roger Shelton, Lt., Maximum Security * District Court for the
    Unit; John Kliener, Major, Maximum * Eastern District of Arkansas.
    Security Unit,                       *
    *
    *
    Defendants - Appellees.        *
    ___________
    Submitted: February 14, 2003
    Filed: February 24, 2003
    ___________
    Before LOKEN, RILEY, and SMITH, Circuit Judges.
    ___________
    LOKEN, Circuit Judge.
    Arkansas inmate Lawrence Martin filed this 
    42 U.S.C. § 1983
     action pro se
    against two members of the Arkansas Department of Correction’s Maximum Security
    Unit staff, alleging that defendants violated his constitutional right to be free from
    cruel and unusual punishment by forcing him to work in thirty-degree weather
    without warm clothing on February 21, 2001. Martin subsequently amended his
    complaint to add a claim that defendants forced him to work outside on July 26, 2001,
    in humid, 98-degree weather despite his high blood pressure condition. Defendants
    moved for summary judgment. As to the first occasion, defendants submitted
    evidence that Martin came to work without warm clothing, quit working before staff
    could retrieve a coat for him, and was placed on disciplinary review status for
    refusing to work. As to the second occasion, defendants submitted evidence that
    Martin quit working, was again put on disciplinary review for that reason, and
    showed no signs of physical distress that day. Moreover, his medical records show
    that he saw a nurse practitioner the next day and made no complaint consistent with
    his allegation that he had quit working because he feared a heart attack or stroke from
    working in the heat.
    The district court granted summary judgment dismissing the amended
    complaint, concluding that defendants were entitled to qualified immunity with
    respect to the February 2001 incident, and that Martin had failed to exhaust his prison
    remedies with respect to the July 2001 incident, as 42 U.S.C. § 1997e requires.
    Martin appeals. We affirm.
    The Prison Litigation Reform Act of 1996 enacted what is commonly referred
    to as the “three strikes” provision, codified at 
    28 U.S.C. § 1915
    (g). This statute
    provides that an inmate who has had three prior actions or appeals dismissed as
    frivolous, malicious, or for failure to state a claim may not proceed in a civil action
    in forma pauperis “unless the prisoner is under imminent danger of serious physical
    injury.” The statute’s bar does not preclude the inmate from filing additional actions
    but does deny him the advantages of proceeding in forma pauperis. In this case,
    Martin had filed at least three frivolous civil actions prior to this action, but he was
    permitted to proceed in forma pauperis in the district court and on appeal, without
    paying the required filing fees. In our view, this was error because he did not
    sufficiently allege the kind of imminent danger of serious physical injury that falls
    within the exception to 
    28 U.S.C. § 1915
    (g).
    -2-
    This Court and several other circuits have concluded that the requisite
    imminent danger of serious physical injury must exist at the time the complaint or the
    appeal is filed, not when the alleged wrongdoing occurred. See Ashley v. Dilworth,
    
    147 F.3d 715
    , 717 (8th Cir. 1998); Abdul-Akbar v. McKelvie, 
    239 F.3d 307
    , 312 (3rd
    Cir. 2001) (en banc) (collecting cases and overruling contrary prior Third Circuit
    authority). Moreover, the exception focuses on the risk that the conduct complained
    of threatens continuing or future injury, not on whether the inmate deserves a remedy
    for past misconduct. “By using the term ‘imminent,’ Congress indicated that it
    wanted to include a safety valve for the ‘three strikes’ rule to prevent impending
    harms, not those harms that had already occurred.” 
    Id. at 315
    . Applying these
    principles, we have concluded that the imminent-danger-of-serious-physical-injury
    standard was satisfied when an inmate alleged that prison officials continued to place
    him near his inmate enemies, despite two prior stabbings, Ashley, 
    147 F.3d at 717
    ;
    and when an inmate alleged deliberate indifference to his serious medical needs that
    resulted in five tooth extractions and a spreading mouth infection requiring two
    additional extractions, McAlphin v. Toney, 
    281 F.3d 709
    , 710-11 (8th Cir. 2002).
    Here, on the other hand, Martin alleges that defendants forced him to work
    outside in inclement conditions on two occasions five months apart. The weather
    conditions on the two days were dissimilar. In each instance Martin quit working and
    was taken inside, out of the alleged danger, though he did suffer prison discipline for
    acting unilaterally. The amended complaint made no allegation of ongoing danger,
    other than conclusory assertions that defendants were trying to kill Martin by forcing
    him to work in extreme conditions despite his blood pressure condition. This type of
    general assertion is insufficient to invoke the exception to § 1915(g) absent specific
    fact allegations of ongoing serious physical injury, or of a pattern of misconduct
    evidencing the likelihood of imminent serious physical injury. See Abdul-Akbar, 
    239 F.3d at
    315 n.1.
    -3-
    For the foregoing reasons, we conclude that Martin’s amended complaint failed
    to satisfy the imminent-danger-of-serious-physical-injury exception to 
    28 U.S.C. § 1915
    (g) at the time he filed that complaint. Our normal disposition in these
    circumstances would be to remand to the district court to give Martin the opportunity
    to reinstate his lawsuit by paying the filing fee due in the district court (and on
    appeal). See Baños v. O’Guin, 
    144 F.3d 883
    , 885 (5th Cir. 1998). However, having
    carefully reviewed the record on appeal, we further conclude that summary judgment
    dismissing his claims was properly granted for the reasons stated by the district court.
    Accordingly, we affirm the judgment of the district court.
    A true copy.
    Attest:
    CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.
    -4-
    

Document Info

Docket Number: 02-2770

Citation Numbers: 319 F.3d 1048

Judges: Loken, Riley, Smith

Filed Date: 2/24/2003

Precedential Status: Precedential

Modified Date: 10/19/2024