In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 17‐2427
MAURICE L. WALLACE,
Plaintiff‐Appellant,
v.
JOHN BALDWIN, et al.,
Defendants‐Appellees.
____________________
Appeal from the United States District Court for the
Southern District of Illinois.
No. 17‐CV‐0576 — David R. Herndon, Judge.
____________________
ARGUED APRIL 25, 2018 — DECIDED JULY 9, 2018
____________________
Before MANION, HAMILTON, and BARRETT, Circuit Judges.
HAMILTON, Circuit Judge. Plaintiff Maurice Wallace was
convicted of murder and sentenced to life without parole in
2006. A few months after he entered prison, he assaulted a
guard. He has been in solitary confinement (euphemistically
called “disciplinary segregation”) ever since—for at least
eleven years. He is seriously mentally ill. He also poses chal‐
lenges to both prison officials and federal courts.
2 No. 17‐2427
Wallace lodged with the district court a proposed com‐
plaint against prison officials and the Illinois Department of
Corrections. He alleges that his prolonged isolation exacer‐
bates his mental illness, increases his risk of suicide, and vio‐
lates his Eighth and Fourteenth Amendment rights. He is un‐
able to pay the civil filing fee in advance, so he also filed a
motion for leave to proceed in forma pauperis under 28 U.S.C.
§ 1915. The district court ruled that Wallace cannot proceed in
forma pauperis because he has received three “strikes” under
the Prison Litigation Reform Act for frivolous cases and did
not qualify for the statutory exception for a prisoner who is
“under imminent danger of serious physical injury.” See 28
U.S.C. § 1915(g).
Wallace appeals that denial. He was not allowed to pro‐
ceed in the district court, and the named defendants have not
appeared in either the district court or on appeal. We re‐
cruited counsel for Wallace, and they have represented him
ably. With better‐developed arguments and with the benefit
of Sanders v. Melvin, 873 F.3d 957 (7th Cir. 2017), decided after
the district court’s decision in this case, we conclude that the
district court’s reasons for denying in forma pauperis status
were erroneous. Wallace has alleged sufficiently that he faces
imminent danger of serious physical injury. He also has not
yet received three “strikes” under the Prison Litigation Re‐
form Act. We vacate the judgment and remand for further
proceedings.
The Prison Litigation Reform Act’s “three strikes” provi‐
sion limiting prisoners’ civil lawsuits in federal courts is at the
center of this appeal:
In no event shall a prisoner bring a civil action or ap‐
peal a judgment in a civil action or proceeding under
No. 17‐2427 3
this section if the prisoner has, on 3 or more prior occa‐
sions, 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 friv‐
olous, malicious, or fails to state a claim upon which
relief may be granted, unless the prisoner is under im‐
minent danger of serious physical injury.
28 U.S.C. § 1915(g).
We review de novo a district court’s interpretation of the
three‐strikes provision in § 1915(g). Ciarpaglini v. Saini, 352
F.3d 328, 330 (7th Cir. 2003), citing Evans v. Illinois Dep’t of Cor‐
rections, 150 F.3d 810, 811 (7th Cir. 1998). On the imminent‐
danger exception, factual issues are possible. If a district court
digs into them and makes findings, our appellate review
adapts accordingly. Our account treats as true all well‐
pleaded allegations in the complaint and views them in the
light most favorable to plaintiff. See Arnett v. Webster, 658 F.3d
742, 751 (7th Cir. 2011).
The core of Wallace’s complaint is that solitary confine‐
ment has intensified his mental illness, including post‐trau‐
matic stress disorder, causing nightmares, severe anxiety, and
most relevant here, suicidal thoughts. He describes his segre‐
gation as “akin to being sealed inside a coffin.” He spends 23
to 24 hours a day alone in a cell that is “significantly smaller”
than 50 square feet. The cell is dark, noisy, infested with in‐
sects, freezing in the winter, and hot in the summer. Because
of his segregation, he cannot attend educational or religious
classes, visit the law library used by the general population,
or earn income from a prison job.
4 No. 17‐2427
This extreme isolation for more than a decade has taken a
toll on Wallace’s mental health. He takes antidepressants for
post‐traumatic stress disorder. But despite this medication he
still experiences depression, anxiety, panic attacks, difficulty
sleeping, and auditory hallucinations.
Central to this appeal, Wallace alleges that prolonged seg‐
regation has increased his risk of suicide. He has attempted
suicide at least five times, including three times during his
eleven years in segregation. His last attempt was in late 2016.
The details of that attempt are unclear. During a prior attempt
Wallace tied a sheet around his neck and “threatened to
jump.” Taking Wallace’s threats seriously, prison staff have
often placed him on special observation as a precaution
against self‐harm.
Over the years, Wallace alleges, he has submitted “several
hundred written requests” to be told when his segregation
will end. Prison staff either ignore those requests or summar‐
ily deny them. His most recent request was denied without
explanation in January 2017.
A few months after the most recent denial, Wallace tried
to file this suit against the Department and prison officials un‐
der 42 U.S.C. § 1983, alleging violations of his Eighth and
Fourteenth Amendment rights. He alleged in his pro se com‐
plaint that the officials were deliberately indifferent to the ef‐
fects of his prolonged isolation, including his increased risk of
suicide.
Wallace submitted with his complaint an application to
proceed in forma pauperis. He reported that he had incurred
three “strikes” under the PLRA for filing actions in federal
No. 17‐2427 5
court that were dismissed as frivolous, malicious, or for fail‐
ure to state a claim. But he argued that the district court
should allow him to proceed without prepayment of the full
filing fee because he faces “imminent danger of serious phys‐
ical injury.” 28 U.S.C. § 1915(g).
The district court denied Wallace leave to proceed in
forma pauperis and ordered him to pay the full filing fee be‐
fore the case could proceed. Wallace v. Baldwin, No. 17‐cv‐
0576‐DRH, 2017 WL 2865317 (S.D. Ill. July 5, 2017). The court’s
order listed three previous cases in which district judges had
assessed Wallace strikes. The court then ruled that Wallace’s
periodic suicidal ideation did not place him in “imminent
danger” because his complaint did not “allege that he is cur‐
rently considering suicide,” and because “a prisoner cannot
create the imminent danger required by § 1915(g),” citing
Widmer v. Butler, No. 14‐cv‐874‐NJR, 2014 WL 3932519 (S.D.
Ill. Aug. 12, 2014), and other district court decisions. Wallace,
2017 WL 2865317, at *2. Wallace did not pay the filing fee but
instead filed this appeal, also seeking to proceed in forma
pauperis.
We first address the issue presented to the district court,
which is whether his allegations satisfy the imminent‐danger
exception to § 1915(g). To be clear, we respectfully disagree
with the district court’s general rule that a prisoner cannot
create the imminent danger needed to satisfy the exception.
We recognize the common‐sense appeal of that general rule,
at least to the extent it is based on truly voluntary actions by
the prisoner. In the case, however, of someone suffering from
mental illness that inclines him toward self‐harm—a condi‐
tion that is unfortunately common in American prisons—that
6 No. 17‐2427
general rule sweeps too broadly. It does not account for gen‐
uine dangers beyond the conscious control of these prisoners.
Wallace cites scholarly studies finding a link between pro‐
longed solitary confinement and an increased risk of self‐
harm. See, e.g., Fatos Kaba, et al., Solitary Confinement and Risk
of Self‐Harm Among Jail Inmates, 104 Am. J. of Pub. Health 442
(2014); Stuart Grassian, Psychiatric Effects of Solitary Confine‐
ment, 22 Wash U. J. L. & Pol’y 325 (2006). Two professors of
psychiatric medicine tell us in an amicus brief that these stud‐
ies align with the “scientific consensus … that prisoners held
in solitary confinement experience serious, often debilitat‐
ing—even irreparable—mental and physical harms,” includ‐
ing an increased risk of suicide. See also Davis v. Ayala, 135 S.
Ct. 2187, 2208–10 (2015) (Kennedy, J., concurring) (noting
need for courts to pay closer attention to research on harmful
mental‐health effects of solitary confinement); Glossip v. Gross,
135 S. Ct. 2726, 2765–66 (2015) (Breyer, J., dissenting) (review‐
ing research on harmful mental‐health effects of solitary con‐
finement, noting that the United Nations Special Rapporteur
on Torture has called for a global ban on solitary confinement
for longer than 15 days, and noting that many defendants
waiting for death penalty in solitary confinement “volunteer
to be executed, abandoning further appeals”).
With the help of his appellate counsel and the amici, Wal‐
lace argues broadly that prolonged solitary confinement
“makes self‐harm imminent” for all prisoners, regardless of
their individual circumstances. They argue, in effect, that any
challenge to solitary confinement based on a claimed risk of
self‐harm could satisfy the imminent‐danger exception of
§ 1915(g). We can decide this case without going so far. Lim‐
No. 17‐2427 7
iting our decision to the facts before us, we conclude that Wal‐
lace made a sufficient showing that he faced imminent dan‐
ger.
Wallace’s situation is indistinguishable from that of the
mentally‐ill prisoner in Sanders v. Melvin, 873 F.3d 957 (7th
Cir. 2017). Sanders had spent eight years in solitary confine‐
ment and had a history of self‐harm when he filed suit. Id. at
959–60. He alleged that his mental illness and prolonged seg‐
regation predisposed him to self‐harm. We concluded that
Sanders’s allegations satisfied the imminent‐danger excep‐
tion to the three‐strikes rule. Id. at 960.
Similarly, Wallace has spent eleven years in solitary con‐
finement, suffers from serious mental illness, and he has a his‐
tory of attempting to harm himself. He raises a genuine con‐
cern that the negative psychological effects of his segregation
will drive him to self‐harm. So Wallace has plausibly alleged
that his continued segregation places him in imminent danger
of serious bodily injury. See id.; see also In re Medley, 134 U.S.
160, 168 (1890); Davis, 135 S. Ct. at 2210 (Kennedy, J., concur‐
ring).
For the sake of completeness, we also elect to address a
second issue. Wallace himself did not raise it, having taken at
their word federal judges’ assessments of strikes. His appel‐
late counsel have recognized and explained the problem.
Wallace would be entitled to proceed in forma pauperis even
if he were not in imminent danger. Upon closer examination,
it is clear that only two of his purported “strikes” were
properly assessed. The third strike was a case in which a judge
assessed Wallace a strike after denying his motion to inter‐
vene in another prisoner’s lawsuit. The assessment of that
strike was a legal error.
8 No. 17‐2427
“[A] later district court may not defer to an earlier district
court’s contemporaneous decision to label a dismissal as a
strike.” Fourstar v. Garden City Grp., Inc., 875 F.3d 1147, 1153
(D.C. Cir. 2017). We agree with Wallace that moving to inter‐
vene under Federal Rule of Civil Procedure 24 does not qual‐
ify for a strike. Section 1915(g) is phrased to apply only to
bringing a civil action or appealing a civil judgment: “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 pris‐
oner has accumulated three strikes, says the statute. Filing a
motion to intervene does not amount to bringing a civil ac‐
tion. Also, a district judge may deny intervention without
finding that the complaint in intervention is “frivolous, mali‐
cious, or fails to state a claim.” See § 1915(g); Fed. R. Civ. P.
24(b). We see no basis to stretch the text of § 1915(g) to address
the hypothetical prisoner who seeks to exploit intervention as
a means of avoiding the three‐strikes rule. In such cases,
which should be rare, the judge would still have many addi‐
tional tools to deal with misuse of litigation procedures.
Accordingly, we VACATE the district court’s order deny‐
ing Wallace’s motion for leave to proceed in forma pauperis
and REMAND this action for further proceedings consistent
with this opinion.