Imminent danger allows inmate plaintiff to get IFP status despite "three strikes and yer out" rule

This pro se inmate alleges that the jailers refused to change the battery in his pacemaker. That would give him a constitutional claim. The problem is that he was denied in forma pauperis status because of the "three strikes your out" rule that says the court cannot waive the filing fee if you have previously brought three frivolous lawsuits. The Court of Appeals reverses.

The case is McFadden v. Koenigsmann, a summary order issued on March 27. As it happened, the district court was correct in finding that plaintiff was a three-striker, based on court rulings in his cases from 2011, 2016 and 2017. But there is an exception to the three-strikes rule: the imminent danger rule, which says you can get IFP status if your lawsuit alleges that the constitutional violation this time around places you in imminent danger.

To win under the imminent danger rule, "the feared physical injury must be serious." Here, plaintiff says he was under imminent danger when the jail did not replace the battery in his pacemaker, and that he has ongoing heart disease. So, in this short and sweet opinion, the Second Circuit (Katzmann, Wesley and Park) says plaintiff satisfies the imminent danger rule, and the case may proceed without paying the filing fee.