Jerry Vandiver v. Doug Vasbinder

File Name: 11a0181n.06
NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
No. 08-2602
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
Mar 28, 2011
LEONARD GREEN, Clerk
Jerry Vandiver, )
)
Plaintiff-Appellant )
)
v. ) ON APPEAL FROM THE UNITED
) STATES DISTRICT COURT FOR THE
Doug Vasbinder, Warden, et al., ) EASTERN DISTRICT OF MICHIGAN
)
Defendants-Appellees )
)
)
BEFORE: KEITH, MERRITT, and MARTIN, Circuit Judges
MERRITT, Circuit Judge. Jerry Vandiver, a prisoner, challenges the district court’s
dismissal of his civil rights complaint pursuant to the “three strikes” provision of the Prison
Litigation Reform Act (“the Act”). Vandiver on appeal maintains he falls under the imminent danger
exception applicable to that provision. We conclude that his pro se complaint, appropriately
construed, sufficiently pleads a presently existing imminent danger, and therefore REVERSE.
I.
Vandiver filed a pro se civil rights complaint under 42 U.S.C. § 1983, alleging that he was
denied medical treatment in retaliation for his First-Amendment-protected speech activities while
incarcerated at the G. Robert Cotton Correctional Facility in Jackson, Michigan (“Jackson facility”).
Vandiver, who is diabetic and suffers from Hepatitis C, claimed that he was denied health care in
No. 08-2602
Vandiver v. Vasbinder
retaliation for speaking out “concerning prisoners health care needs” and “for seeking access to the
courts.” He named as defendants various officials at the Jackson facility, including its warden, its
deputy warden, its health unit manager, and a nurse supervisor. At the time of the filing of the
complaint, Vandiver had been transferred to the Earnest C. Brooks Correctional Facility in
Muskegon Heights, Michigan (“Muskegon Heights facility”). Nonetheless, his complaint alleges
that he still “is not receiving proper treatment” at the new facility.
Defendants filed a motion to revoke Vandiver’s in forma pauperis status (which the district
court initially granted soon after Vandiver’s complaint was filed) and dismiss his complaint pursuant
to 28 U.S.C. § 1915(g). Defendants argued that Vandiver had filed three previous actions qualifying
under the Act as “strikes” for being dismissed as frivolous or for failure to state a claim (a finding
not contested in this appeal), and further that his complaint failed to allege imminent danger
sufficient to qualify for the Act’s exception. Defendants’ motion was consolidated with similar
motions filed in two other cases also filed by Vandiver within days of this one, and a magistrate
judge issued a Report and Recommendation recommending that all three motions be granted and
Vandiver’s complaint in this case be dismissed without prejudice. Primarily focusing her analysis
of imminent danger on one of the other two cases, the magistrate judge stated as to this case only the
general conclusion that “there is no showing of imminent danger of serious physical injury.” Over
Vandiver’s objection, the district court adopted the magistrate’s Report and Recommendation in full,
agreeing that Plaintiff “has shown no such danger.” Vandiver appealed.
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II.
28 U.S.C. § 1915(g) reads:
In no event shall a prisoner bring a civil action or appeal a judgment in a civil
action or proceeding under this section if the prisoner has, on 3 or more occasions,
while incarcerated or detained in any facility, brought an action or appeal in a
court of the United States that was dismissed on the grounds that it is frivolous,
malicious, or fails to state a claim upon which relief may be granted, unless the
prisoner is under imminent danger of serious physical injury.
(Emphasis added.) Vandiver’s first argument on appeal asks us to construe the exception in
§1915(g)’s final clause quoted above as not requiring the defendant to demonstrate that he is in
imminent danger at the time of the filing of the complaint in federal court, as every circuit to have
considered the issue (including this one, in an unpublished decision) has read the statute. See
Heimermann v. Litscher, 337 F.3d 781, 782 (7th Cir. 2003); Malik v. McGinnis, 293 F.3d 559,
562–63 (2d Cir. 2002); Abdul-Akbar v. McKelvie, 239 F.3d 307, 314 (3d Cir. 2001) (en banc);
Medberry v. Butler, 185 F.3d 1189, 1193 (11th Cir. 1999); Ashley v. Dilworth, 147 F.3d 715, 717
(8th Cir. 1998); Banos v. O’Guin, 144 F.3d 883, 884–85 (5th Cir. 1998); see also Rittner v. Kinder,
290 F. App’x 796 (6th Cir. 2008) (unpublished decision). His argument begins by contending that
an inconsistency between the provision’s tenses—concerning the “three strikes,” the statute uses the
past tense and the present tense in one phrase when it speaks of an action that “was dismissed on the
grounds that it is frivolous, malicious, or fails to state a claim” (emphases added)—renders the
statute ambiguous. He then proceeds to suggest that this ambiguity be resolved by reading the statute
to require the defendant only to demonstrate that he was in imminent danger at the initiation of
administrative remedies, the exhaustion of which are required by the Act in a separate provision.
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See 42 U.S.C. § 1997e(a) (“No action shall be brought with respect to prison conditions under
section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other
correctional facility until such administrative remedies as are available are exhausted.”).
We depart from Vandiver’s argument at its first premise: we cannot agree that the statute
is ambiguous. As the other circuits have recognized, the only tense used in the relevant
clause—“unless the prisoner is under imminent danger of serious physical injury”—is the present,
and so the plain language of § 1915(g) requires the imminent danger to be contemporaneous with
the complaint’s filing. See, e.g., Malik, 293 F.3d at 562–63 (“Because § 1915(g) uses the present
tense in setting forth the imminent danger exception, it is clear from the face of the statute that the
danger must exist at the time the complaint is filed.”); Ashley, 147 F.3d at 717 (“As the statute’s use
of the present tense . . . demonstrates, an otherwise ineligible prisoner is only eligible to proceed [in
forma pauperis] if he is in imminent danger at the time of filing.” (emphasis in original)). A
prisoner-plaintiff with three strikes falls outside the exception when he was in imminent danger but
is no longer at the initiation of proceedings in federal court.
III.
Vandiver next contends that, even if § 1915(g) requires imminent danger to exist at the
complaint’s filing, he did in fact plead a presently existing imminent danger, and the district court
erred in imposing a heightened “showing” requirement as to imminent danger at the pleading stage
and therefore failed properly to consider the allegations in his complaint. We agree and find that
Plaintiff’s complaint can be fairly read to allege that he is still receiving improper care as of the
complaint’s filing and so qualifies for § 1915(g)’s imminent-danger exception.
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The imminent danger exception is essentially a pleading requirement subject to the ordinary
principles of notice pleading. See Fed. R. Civ. P. 8(a)(2) (requiring only “a short and plain statement
of the claim showing that the pleader is entitled to relief”); Ciarpaglini v. Saini, 352 F.3d 328,
330–31 (7th Cir. 2003) (calling the imminent danger exception a “pleading requirement” and
recognizing the logical consequence that “[f]requent filers sometimes allege that they are in
imminent danger so they can avoid paying a filing fee”). As a pro se plaintiff, Vandiver is entitled
to have his complaint liberally construed. See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (noting
that “a pro se complaint, however inartfully pleaded, must be held to less stringent standards than
formal pleadings drafted by lawyers” (internal quotation marks and citations omitted)). With these
principles in place, an appropriate reading of his complaint suggests that it alleges, at least in part,
a presently existing, continuing imminent danger: he alleges that he “is not receiving proper
treatment” (emphasis added). Failure to receive adequate treatment for potentially life-threatening
illnesses such as those suffered by Vandiver clearly constitutes “imminent danger” under the Act.
See Ibrahim v. District of Columbia, 463 F.3d 3, 6–7 (D.C. Cir. 2006). It is unclear what standard
the district court was applying when it stated that Vandiver had not “shown” imminent danger, but
we hold that he sufficiently alleged it, and that is all that is required by § 1915(g).
IV.
For the foregoing reasons, we REVERSE the decision of the district court, and the case
is REMANDED for further proceedings consistent with this opinion.
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