Johnson v. Little

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT April 21, 2021
_________________________________
Christopher M. Wolpert
Clerk of Court
JABARI J. JOHNSON,
Plaintiff - Appellant,
v. No. 20-1355
(D.C. No. 1:20-CV-02613-LTB)
THOMAS LITTLE; JOY HUDGON; (D. Colo.)
DAVID LIGAC; PAUL AUDET;
CHANCE TURNER; KYLE MILLER;
CRAWFORD; MORONES; ANAYA;
BRADLEY VOGAN; KYLE MOORE;
RICHARD PEEK; LAMBKINS; FOX;
AYALA; COLLINS; KILPOLITES;
CASADY; HUNT; HOFFMAN; GILLIS;
VALLE; LATORRE; ELDEBI; COMBEE;
McCALLISTER; MARTIN;
DEFRANCISCO; TRAVIS ROOT;
JONERIC COX,
Defendants - Appellees.
–––––––––––––––––––––––––––––––––––
JABARI J. JOHNSON,
Plaintiff - Appellant,
v.
No. 20-1370
KATHLEEN BOYD, (D.C. No. 1:20-CV-02663-LTB)
(D. Colo.)
Defendant - Appellee.
–––––––––––––––––––––––––––––––––––
JABARI J. JOHNSON,
Plaintiff - Appellant,
v.
No. 20-1389
STEPHANIE DALTON, (D.C. No. 1:20-CV-03068-LTB)
(D. Colo.)
Defendant - Appellee.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before MATHESON, BRISCOE, and CARSON, Circuit Judges.
_________________________________
Jabari J. Johnson, a Colorado prisoner proceeding pro se, appeals from the
district court’s dismissal of three lawsuits for failure to comply with that court’s
previously imposed filing restrictions. Exercising jurisdiction under 28 U.S.C.
§ 1291, we affirm the dismissal of all three suits.1
I. BACKGROUND
A. Mr. Johnson is subject to filing restrictions in the district court.
Mr. Johnson has filed more than one hundred lawsuits in the district court. In
March 2020, the district court imposed filing restrictions upon him. Johnson v.
Hawkins, No. 19-cv-03730-LTB, at 2, 6 (D. Colo. Mar. 4, 2020) (unpublished).
*
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. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
1
We consolidate these appeals for the sole purpose of this order and judgment.
See Fed. R. App. P. 3(b)(2).
2
Among other requirements, the restrictions require Mr. Johnson to “properly
complete a Court-approved prisoner complaint/habeas corpus application form by
completing all sections of the form pursuant to the form instructions” and “provide a
notarized affidavit that certifies the lawsuit is not interposed for any improper
purpose to harass or cause unnecessary delay, and that the filing complies with [the
court’s] injunction, Fed. R. Civ. P. 8,” and other applicable rules. Id. at 2.
Mr. Johnson did not appeal from the order imposing the filing restrictions.
B. Mr. Johnson must show “imminent danger of serious physical injury.”
In addition, 28 U.S.C. § 1915(g) imposes restrictions on Mr. Johnson. Under
§ 1915(g), a prisoner who has brought three or more actions or appeals that were
dismissed as frivolous or malicious, or for failure to state a claim, may not proceed
without prepayment of costs and fees “unless the prisoner is under imminent danger
of serious physical injury.” These restrictions apply both to civil actions in district
court and appeals in circuit court.
The district court has dismissed at least three of Mr. Johnson’s prior suits as
frivolous. See Johnson v. Hill, No. 20-cv-00188-LTB, at 9, 11 (D. Colo. Mar. 6,
2020) (unpublished); Johnson v. Hampton, No. 20-cv-00161-LTB, at 8, 10 (D. Colo.
Mar. 6, 2020) (unpublished); Johnson v. Ponce, No. 20-cv-00014-LTB, at 8-9, 10 (D.
Colo. Mar. 4, 2020) (unpublished).2 He therefore must either prepay costs and fees
2
In show-cause responses in all three appeals, Mr. Johnson disputes whether
the cited cases were frivolous. But he does not contest that the district court
dismissed them as frivolous. He did not appeal from the judgments, and it is too late
for him to try to appeal from them now. See Bowles v. Russell, 551 U.S. 205, 214
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or demonstrate that he “is under imminent danger of serious physical injury” to
proceed without prepayment in district court or this court.
II. DISCUSSION
Mr. Johnson filed the suits underlying these appeals in the fall of 2020. In
each case, the district court concluded that Mr. Johnson had failed to comply with its
filing-restriction order and dismissed the suit. It also denied him leave to proceed on
appeal without prepayment of costs and fees.
A. Mr. Johnson Has Satisfied the “Imminent Danger” Requirement
to Proceed with These Appeals.
Mr. Johnson filed in this court motions to proceed on appeal without
prepayment of costs and fees. In each appeal, this court issued a show-cause order
requiring Mr. Johnson to show that he “is under imminent danger of serious physical
injury,” as required by § 1915(g).
To satisfy § 1915(g), a prisoner must present “specific, credible allegations of
imminent danger of serious physical harm.” Kinnell v. Graves, 265 F.3d 1125, 1128
(10th Cir. 2001) (internal quotation marks omitted). “He should identify at least the
general nature of the serious physical injury he asserts is imminent. Vague and utterly
conclusory assertions are insufficient.” Hafed v. Fed. Bureau of Prisons, 635 F.3d 1172,
1180 (10th Cir. 2011) (brackets, citation, and internal quotation marks omitted),
(2007) (“[T]he timely filing of a notice of appeal in a civil case is a jurisdictional
requirement.”); Fed. R. App. P. 4(a)(1)(A) (setting a thirty-day appeal period). He is
bound by the judgments in those suits. See Kinnell v. Graves, 265 F.3d 1125, 1128
(10th Cir. 2001).
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abrogated on other grounds by Coleman v. Tollefson, 575 U.S. 532 (2015). “[W]e
construe his filings liberally and accept his well-pled allegations as true, and we require
only that his allegations facially satisfy the threshold showing that the imminent-danger
exception applies.” Boles v. Colo. Dep’t of Corr., 794 F. App’x 767, 770 (10th Cir.
2019) (unpublished) (citation omitted).3
1. No. 20-1355
In appeal No. 20-1355, Mr. Johnson’s show-cause response asserts that “he is
deprived of his mandated Dr.s order of wheelchair forced to scoot and crawl on
floor.” No. 20-1355 Resp. at 2. His complaint alleges that he has been issued
medical orders for a wheelchair, that he has shown the relevant documents to the
defendants and told them that he is suffering pain, and that the defendants’ refusal to
allow him a wheelchair is “causing further pain and injury to Plaintiffs current
injuries to feet, back, and leg as Plaintiff scoots and crawls on injuries.” No. 20-1355
R. at 13.
We have recognized that “[i]f [a prisoner] does indeed require a wheelchair,
the failure to provide him with one could result in a number of serious physical
injuries.” Fuller v. Wilcox, 288 F. App’x 509, 511 (10th Cir. 2008) (unpublished).
3
“Although unpublished orders and opinions generally are not considered
binding precedent, . . . such an order or opinion may be relied on for the purpose of
disposing of the issue presented if it has persuasive value with respect to a material
issue in a case and would assist the court in its disposition.” United States v. Engles,
779 F.3d 1161, 1162 n.1 (10th Cir. 2015). See Fed. R. App. 32.1(a); 10th Cir. R.
32.1(A).
5
We therefore concluded that the prisoner’s allegations of being deprived of a
medically necessary wheelchair satisfied the imminent-danger exception. See id.Similarly, Mr. Johnson’s allegations of being deprived of a medically necessary
wheelchair, causing him pain and aggravating other injuries, satisfy § 1915(g).4 We
therefore grant the motion to proceed on appeal without prepayment of costs and fees
in No. 20-1355.
2. No. 20-1370
In appeal No. 20-1370, Mr. Johnson’s show-cause response asserts that he “is
deprived of an inhaler to assist [him] with ongoing reocuring asthma attacks.”
No. 20-1370 Resp. at 2. He further asserts that his asthma “is marked by recurrent
episodes of airway obstruction, manifested by labored breathing accompanied by
weezing and coughing.” Id. “[I]f not treated [he] could die.” Id. His complaint
alleges that he suffers from asthma, that he has requested an inhaler, and that he had
active asthma attacks and was not provided or was deprived of an inhaler on three
specific dates. It alleges that he suffers from shortness of breath, chest pain, and
wheezing, and that he has been unable to breathe.
Mr. Johnson alleges a continuing medical need and that the defendant denied
him a particular medication that he needed on at least three specific occasions.
See Hafed, 635 F.3d at 1180 (stating that the prisoner “should make a specific
4
The complaint and show-cause response in No. 20-1355 also refer to injuries
from being deprived of a shower cell and showers and recreation. Having concluded
that the wheelchair allegations satisfy § 1915(g), we need not consider those
additional allegations.
6
reference as to which of the defendants may have denied him what medication or
treatment for what ailment on what occasion” (internal quotation marks omitted)).
These allegations adequately show, under § 1915(g), that Mr. Johnson “is under
imminent danger of serious physical injury.” See Fuller v. Myers, 123 F. App’x 365,
367 (10th Cir. 2005) (unpublished) (holding that allegations of breathing difficulties
and other respiratory problems caused by prison ventilation system established
imminent danger); see also Davis v. GEO Grp. Corr., Inc., 696 F. App’x 851, 855
(10th Cir. 2017) (unpublished) (“[A]llegations that Defendants have displayed a
deliberate indifference toward [a prisoner’s] serious medical needs and denied him
adequate medical treatment are sufficient to facially establish the . . . imminent and
serious danger requirement.”). We therefore grant the motion to proceed on appeal
without prepayment of costs or fees in No. 20-1370.
3. No. 20-1389
In appeal No. 20-1389, Mr. Johnson’s show-cause response again asserts that
the defendant has deprived him of a medically necessary wheelchair. The complaint
makes the same assertions. For the same reasons discussed, these allegations satisfy
§ 1915(g). We therefore grant the motion to proceed on appeal without prepayment
of costs or fees in No. 20-1389.
B. The District Court Did Not Abuse Its Discretion in Dismissing the Suits.
Having determined that Mr. Johnson satisfies § 1915(g) in each of these
appeals, we next consider the district court’s dismissal orders. “We review for an
abuse of discretion the district court’s decision to impose the sanction of dismissal
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for failure to follow court orders and rules.” Gripe v. City of Enid, 312 F.3d 1184,
1188 (10th Cir. 2002); see also Stine v. U.S. Fed. Bureau of Prisons, 465 F. App’x
790, 800 (10th Cir. 2012) (unpublished) (reviewing dismissal pursuant to filing
restrictions for abuse of discretion). “Under this standard, we will not disturb a trial
court’s decision absent a definite and firm conviction that the lower court made a
clear error of judgment or exceeded the bounds of permissible choice in the
circumstances.” Norton v. City of Marietta, 432 F.3d 1145, 1156 (10th Cir. 2005)
(per curiam) (internal quotation marks omitted).
1. No. 20-1355
In appeal No. 20-1355, the complaint named thirty defendants. It alleged that
they “failed to act to Plaintiffs disability . . . , depriving the Plaintiff of [Americans
with Disabilities Act] accommodations of wheelchair and shower cell/shower and
recreation from 6/11/20 - current date.” No. 20-1355 R. at 13. The district court
held that Mr. Johnson had not satisfied the filing restrictions. First, he instituted the
litigation to harass the defendants. Second, the complaint did not comply with Rule 8
because it failed to state Mr. Johnson’s claims in a clear and concise manner and to
state personal participation by all the defendants. The court also noted that “the
medical claims at issue are being addressed in cases pending before this Court.” Id.
at 52.
The district court did not abuse its discretion in concluding that the litigation
was instituted to harass the defendants. As the court concluded, the complaint did
not satisfy Rule 8. “[T]he pleading standard Rule 8 announces does not require
8
detailed factual allegations, but it demands more than an unadorned, the-defendant-
unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(internal quotation marks omitted). And the phrase “unadorned, the-defendant-
unlawfully-harmed-me accusation” aptly describes the complaint. The complaint
contains few specific allegations as to each defendant’s conduct. “Threadbare
recitals of the elements of a cause of action, supported by mere conclusory
statements,” and “naked assertions devoid of further factual enhancement” do not
satisfy Rule 8. Id. (brackets and internal quotation marks omitted).
Also, Mr. Johnson does not challenge the district court’s conclusion that the
medical issues raised in this suit were already being addressed in other pending cases.
“If the district court states multiple alternative grounds for its ruling and the appellant
does not challenge all those grounds in the opening brief, then we may affirm the
ruling.” Rivero v. Bd. of Regents, 950 F.3d 754, 763 (10th Cir. 2020).
For these reasons, Mr. Johnson has failed to show that the district court abused
its discretion in dismissing the complaint in No. 20-1355.
2. No. 20-1370
In appeal No. 20-1370, Mr. Johnson sued one defendant for not providing or
for depriving him of an inhaler to treat his asthma. The district court held that he did
not comply with the filing restriction to complete Section E of the pro se complaint
form, which addresses prior lawsuits:
To the extent that the Court is able to decipher the
information Plaintiff has provided in Section E., the Court
finds that (1) at least three of the cases he identifies are listed
9
twice; (2) ) in one of the cases he identifies he is not the
named plaintiff, which he has been informed about this
discrepancy before; and (3) he has filed 101 cases in this
Court, not including his six most recent cases, but he only
lists, to the extent the Court is able to identify each of the
listed cases, 96 separate cases filed in this Court.
No. 20-1370 R. at 37. The court directed Mr. Johnson how to list his cases more
legibly going forward.
On appeal, Mr. Johnson argues he cannot completely fill out Section E because
the law librarian refuses to give him sufficient paper. Even assuming that is so, he
does not challenge the district court’s findings that his Section E contains errors,
including an error that the district court has previously pointed out to him. As stated
above, we may affirm if an appellant fails to challenge all of a district court’s
multiple grounds for a ruling. See Rivero, 950 F.3d at 763.
Mr. Johnson also attempts to challenge the filing-restriction order, asserting
the district court lacked authority to issue it. But he did not appeal from the
judgment in Hawkins when the district court imposed the restrictions, and it is too
late for him to appeal from it now. See Bowles v. Russell, 551 U.S. 205, 214 (2007)
(“[T]he timely filing of a notice of appeal in a civil case is a jurisdictional
requirement.”); Fed. R. App. P. 4(a)(1)(A) (setting a thirty-day appeal period). He is
bound by Hawkins. See Kinnell, 265 F.3d at 1128.
For these reasons, Mr. Johnson has failed to show that the district court abused
its discretion in dismissing the complaint in No. 20-1370.
10
3. No. 20-1389
The complaint in appeal No. 20-1389 alleges that the defendant first provided
Mr. Johnson with a wheelchair and medical slip for it, but then removed the
wheelchair in violation of his rights to equal protection, freedom of speech without
retaliation, and to be free from cruel and unusual punishment. The complaint alleged
also that Mr. Johnson had been deprived of a shower cell. The district court held that
Mr. Johnson had failed to complete Section E of the pro se complaint form. Further,
noting that he had already filed a complaint against this defendant regarding access to
a wheelchair, the district court held that this suit was duplicative and an attempt to
circumvent the pending case.
On appeal, Mr. Johnson reiterates that the law librarian will not provide
enough paper for him to complete Section E. He further asserts, without any detail,
that this case presents different claims from the other pending case. Apart from
Section E, he has not adequately explained how the claims in this case differ from the
claims in the other case, or why he could not have asserted all his claims against this
defendant in the other case.
Finally, Mr. Johnson repeats his argument that the district court lacked
authority to issue the filing restrictions in the first place. As stated above with regard
to No. 20-1370, however, Mr. Johnson did not appeal from the judgment at the time,
and he cannot appeal from it now.
For these reasons, Mr. Johnson has failed to show that the district court abused
its discretion in dismissing the complaint in No. 20-1389.
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III. CONCLUSION
In No. 20-1355, we deny Mr. Johnson’s “Motion Requesting Injunction and
Motion to Stay.” In Nos. 20-1370 and 20-1389, we deny his motions for a status
report as moot. In all three appeals, we grant his motions to proceed without
prepayment of costs or fees, and we affirm the district court’s judgments.
IV. WARNING
In the last six months, Mr. Johnson has filed 34 appeals in this court, 28 from
orders dismissing his complaints for failure to satisfy the district court’s filing
restrictions. To date, this court has dismissed 13 of Mr. Johnson’s appeals for lack of
prosecution (12 were from the district court’s dismissals under its filing restrictions).
The underlying suits name many of the same defendants, and the allegations in
several of them are substantially similar. The appeal documents also are duplicative.
We place Mr. Johnson on notice that if he files future appeals from
district court cases in which he has made no demonstrable attempt to comply
with district court filing restrictions, this court may impose filing restrictions or
other appropriate sanctions.
“The right of access to the courts is neither absolute nor unconditional.”
Winslow v. Hunter (In re Winslow), 17 F.3d 314, 315 (10th Cir. 1994) (per curiam)
(brackets and internal quotation marks omitted). Federal courts have inherent
authority “to regulate the activities of abusive litigants by imposing carefully tailored
restrictions under the appropriate circumstances.” Tripati v. Beaman, 878 F.2d 351,
352 (10th Cir. 1989) (per curiam (internal quotation marks omitted).
12
Although “litigiousness alone is not a sufficient reason to restrict access to the
court,” Mr. Johnson’s “abusive and repetitive filings have strained the resources of
this court.” In re Winslow, 17 F.3d at 315. As stated above, he also has filed more
than one hundred lawsuits in the district court and is under filing restrictions in that
court. See Judd v. Univ. of N.M., 204 F.3d 1041, 1044 (10th Cir. 2000) (considering
litigation in other jurisdictions as grounds for filing restrictions). “[W]here . . . a
party has engaged in a pattern of litigation activity which is manifestly abusive,
restrictions are appropriate.” In re Winslow, 17 F.3d at 315 (internal quotation marks
omitted).
Entered for the Court
Scott M. Matheson, Jr.
Circuit Judge
13