Inmate lawsuit is dismissed under PLRA three-strikes rule

Under the Prison Litigation Reform Act, inmates who file three frivolous lawsuits cannot file another case "in forma pauperis," which would waive the filing fees for inmate-litigants who cannot afford them. This is the "three-strikes-you're-out" rule. This case involves an exception to the three strikes rule.

The case is Shepard v. Annucci, issued on April 15. Shepard's prior lawsuits were deemed frivolous, but he sued again, claiming that prison staff did not accommodate his back injury by refusing to house him near the clinic, the package room and the visiting area. While Shepard had exhausted his allotment of frivolous cases, he invoked the exception, which allows you in forma pauperis if you are in "imminent danger of serious physical injury." The idea is that being in imminent danger and the need to file a new lawsuit over that outweighs the three-strikes penalty. So if you are in imminent danger, the filing fees are waived just this once.

The government opposed Sherpard's request for waive the filing fees, claiming (1) Shepard had not come clean about all of his prior frivolous lawsuits and (2) he was in imminent physical danger. Of course, the work the government expended in fighting off Shepard's claimed exception to the three-strikes rule far exceeded the amount of the filing fees that Shepard was trying to avoid paying, but my guess is the government thought this effort was worth it to avoid another lawsuit by Shepard. In any event, the district court dismissed the case after agreeing with the government's position.

The Court of Appeals (Cabranes, Droney and Sullivan) affirms, taking up a new issue under the PLRA. The Circuit says the district court can go beyond the complaint to determine if the inmate-plaintiff really is facing imminent danger. This is consistent with the rule that "courts have long permitted evidentiary submissions at the pleading stage in a variety of different circumstances," including inquiries into whether the court has jurisdiction to hear the case. It is not enough for the inmate to assert in his complaint that he is facing imminent danger. Holding otherwise would only encourage inmates to assert the physical injury exception to avoid paying filing fees. We don't want that, do we?

What is means for Shepard is the district court got it right in finding Shepard was not really facing imminent danger when he filed the lawsuit. Prison doctors said that while Shepard does have chronic back pain, he has access to a wheelchair and other ambulatory aids and the doctors did in fact provide him with pain medication. The Court also finds that plaintiff's claim that his muscles atrophied because of his 24-hour confinement "was shown to be 'ridiculous.'" This all means that Shepard cannot proceed with his case without paying the filing fee. No fee, no case.