Davis v. Rice

FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
November 13, 2008
TENTH CIRCUIT
Elisabeth A. Shumaker
Clerk of Court

ANTHONY L. DAVIS,

Plaintiff - Appellant,
No. 08-3164
v. (D.C. No. 08-CV-03063-SAC)
(D. Kan.)
ELIZABETH L. RICE, Secretary of
Corrections Designee, individually and
as an employee for the Kansas
Department of Corrections; SAM
CLINE, Warden, Hutchinson
Correctional Facility, individually and
as an employee for the Kansas
Department of Corrections;
JOHN/JANE DOES, employees, in
their individual and official capacities;
KANSAS DEPARTMENT OF
CORRECTIONS, a municipality
corporation entity/adjunct political
subdivision of the state of Kansas;
DON LANGFORD, Deputy Warden,
in his individual and official capacity;
(FNU) VANHOOSE, Deputy Warden,
in his individual and official capacity;
J. WILLS, Classification Manager, in
his individual and official capacity;
(FNU) RODRUGUEZ, CCI, Unit
Team, in his individual and official
capacity; (FNU) JARVIS, CCI, Unit
Team, in his individual and official
capacity;(FNU) BEIR-WEIR, CCI,
Unit Team, in his individual and
official capacity; (FNU) HACKNEY,
CCI, Unit Team, in his individual and
official capacity; (FNU) BARR, CCI,
Unit Team, in his individual and
official capacity; PAUL FELECIANO,
 Kansas Parole Board, in his individual
and official capacity; ROBERT
SANDER, Kansas Parole Board, in his
individual and official capacity;
PATRICIA BIGGS, Kansas Parole
Board, in her individual and official
capacity; LIBBY SCOTT, Kansas
Parole Board, in her individual and
official capacity; (FNU)
HONEYCUTT, SST Officer, in his
individual and official capacity;
(FNU) ANDERSON, CCI Officer, in
his individual and official capacity;
(FNU) FOSTER, CCI Officer, in his
individual and official capacity;
(FNU) BALLHAGEN, CCI Officer, in
his individual and official capacity;
(FNU) CRITES, CCI, in his individual
and official capacity; (FNU) CASE,
CCI Officer, in his individual and
official capacity; STEVE
SCHNEIDER, Grievance
Administrator, in his individual and
official capacity; JON GRAVES,
Attorney, in his individual and official
capacity; (FNU) LUDWICK, CCI,
Unit Team, in his individual and
official capacity,

Defendants - Appellees.

ORDER AND JUDGMENT *

*
This order and judgment is not binding precedent, except under the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.

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Before TACHA, KELLY, and McCONNELL, Circuit Judges. **

Plaintiff-Appellant Anthony L. Davis appeals the district court’s order

denying his motion in this civil rights action to proceed in forma pauperis (IFP)

based on the imminent danger exception in 28 U.S.C. § 1915(g). The district

court found that Mr. Davis has “on [three] or more prior 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.” 28 U.S.C. § 1915(g);

see 1 R. Doc. 4; 1 R. Doc. 6. In this appeal, Mr. Davis does not challenge his

status as an inmate with “three strikes,” and we take judicial notice of his prior

dismissed actions, as discussed in the district court’s previous order. 1 R. Doc. 4,

at 1-2 (citing Davis v. Bacon, 234 Fed. App’x 872, 874 (10th Cir. 2007)); see St.

Louis Baptist Temple, Inc. v. Fed. Deposit Ins. Corp., 605 F.2d 1169, 1172 (10th

Cir. 1979) (court may take judicial notice of prior litigation reflected in orders).

“Because plaintiff has accrued three strikes, he [is] no longer . . . able to proceed

in forma pauperis in any civil action or appeal filed in a federal court unless he ‘is

under imminent danger of serious physical injury.’” Davis, 234 Fed. App’x at

**
After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.

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874 (quoting 28 U.S.C. § 1915(g)). Because the denial of IFP effectively ends the

litigation, we review that denial as a collateral order and for an abuse of

discretion. Lister v. Dep’t of Treasury, 408 F.3d 1309, 1310-11, 1312-13 (10th

Cir. 2005).

The issue we must address is whether, through the factual allegations of his

complaint, Mr. Davis has satisfied the “imminent danger” exception in 28 U.S.C.

§ 1915(g). In making our determination, “we look to the complaint, which we

‘construe liberally and the allegations of which we must accept as true.’” Ibrahim

v. District of Columbia, 463 F.3d 3, 6 (D.C. Cir. 2006) (quoting Brown v.

Johnson, 387 F.3d 1344, 1350 (11th Cir. 2004)). To satisfy the “imminent

danger” exception, a complainant must offer “specific fact allegations of ongoing

serious physical injury, or of a pattern of misconduct evidencing the likelihood of

imminent serious physical injury.” Fuller v. Wilcox, 2008 WL 2961388, at *1

(10th Cir. Aug. 4, 2008) (quoting Martin v. Shelton, 319 F.3d 1048, 1050 (8th

Cir. 2003)). Reliance on past injuries or harm, or offering vague or conclusory

allegations, is insufficient. Id.; see White v. Colorado, 157 F.3d 1226, 1231-32

(10th Cir. 1998). In other words, the injury must be “imminent or occurring at

the time the complaint is filed.” Fuller, 2008 WL 2961388, at *1 (quoting

Ciarpaglini v. Saini, 352 F.3d 328, 330 (7th Cir. 2003)).

Liberally construing Mr. Davis’s motion, the district court denied Mr.

Davis leave to proceed IFP. In doing so, the court found that Mr. Davis failed to

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identify an “ongoing, real, or proximate threat to his personal safety.” 1 R. Doc.

6, at 3. In his complaint, Mr. Davis alleged that he was placed in imminent harm

after prison employees disclosed his status as an informant to other prisoners,

which resulted in threats to him. Unlike the cases he cites in support, see Gibbs

v. Roman, 116 F.3d 83 (3d Cir. 1997), overruled on other grounds by Abdul-

Akbar v. McKelvi, 239 F.3d 307 (3d Cir. 2001); Ashley v. Dilworth, 147 F.3d

715, 717 (8th Cir. 1998), Mr. Davis has failed to allege any evidence of actual

attacks or threats by other inmates or provide any documentary evidence of such

imminent danger. In fact, as a result of his initial allegations, prison staff placed

Mr. Davis in segregation, away from other prisoners, in an effort to ensure his

safety. Upon a full review of the record, we agree with the district court that Mr.

Davis has failed to offer any specific allegations of imminent danger due to prison

officials’ alleged revelations that he acted as an informant.

Therefore, because Mr. Davis has neither paid the underlying district court

filing fee 1 nor alleged sufficient allegations to satisfy the “imminent danger”

1
We do, however, recognize that Mr. Davis has paid the $455 appellate
filing fee.

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exception to § 1915(g), the district court’s order is

AFFIRMED.

Entered for the Court

Paul J. Kelly, Jr.
Circuit Judge

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