United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 5, 2009 Decided November 20, 2009
No. 05-5420
RONALD MITCHELL,
APPELLANT
v.
FEDERAL BUREAU OF PRISONS,
APPELLEE
Appeal from the United States District Court
for the District of Columbia
(No. 05cv00512)
Sara Kaiser, Student Counsel, argued the cause as
amicus curiae in support of appellant. With her on the briefs
were Steven H. Goldblatt, appointed by the court, Cecily
Baskir and Charlotte Garden, Supervisory Attorneys, and
James E. Burke, Tony Diab and Prashina Gagoomal, Student
Counsel.
Ronald Mitchell, pro se, filed briefs.
Harry B. Roback, Assistant U.S. Attorney, argued the
cause for appellee. With him on the brief was R. Craig
Lawrence, Assistant U.S. Attorney.
2
Before: TATEL and BROWN, Circuit Judges, and
WILLIAMS, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge TATEL.
TATEL, Circuit Judge: Challenging the conditions of his
incarceration, and having been denied in forma pauperis (IFP)
status by the district court, appellant now seeks to proceed
IFP on appeal. Although appellant has only two “strikes” and
thus faces no Prison Litigation Reform Act (PLRA) bar to IFP
status, we find that he qualifies as an abusive filer under
Butler v. Department of Justice, 492 F.3d 440 (D.C. Cir.
2007), in which we denied IFP status to a prisoner who,
though not technicaly barred by the PLRA, had nonetheless
abused the privilege. Also, even though we now recognize an
exception under Butler for prisoners who face imminent
danger of serious physical injury, appellant’s allegations are
insufficient to qualify for that exception. We therefore deny
his motion for IFP status on appeal.
I.
Ronald Mitchell is a twice-convicted bank robber
currently serving a fifteen-year sentence in the custody of the
Bureau of Prisons (BOP). Over the course of his tenure in the
prison system, he has been incarcerated in several different
penitentiaries and has filed at least sixty-five unsuccessful
lawsuits and appeals in the federal courts, virtually all of
which challenged the legality of his conviction and the
conditions of his confinement. This is one of those cases.
Proceeding under the Privacy Act, 5 U.S.C. § 552a,
Mitchell filed a complaint in federal court in March 2005,
alleging that his prison files omitted a required notation
regarding his need for protective custody. He claimed that
because of this omission, he was improperly transferred to
3
USP Florence, a high-security prison in Colorado—his first
stay at a high-security facility. According to Mitchell, even
though BOP knew he had testified for the government against
his co-defendants and that USP Florence is “known for
murders and assaults on . . . anyone who has been known as a
snitch,” it transferred him there so that he would be
“murdered” by fellow prisoners. Compl. 3–4. In his request
for relief, Mitchell also asserted that he “need[s] medical
treatment for Hepatitis B & C which is incurable and
administered to plaintiff at USP Florence.” Compl. 8. He
sought transfer to protective custody, medical treatment, and
damages.
Mitchell filed a motion to proceed IFP in the district
court. The district court, finding that Mitchell had three
“strikes” within the meaning of the PLRA, 28 U.S.C. §
1915(g), denied the motion and later dismissed the complaint
for failure to pay the filing fee.
Challenging the district court’s denial of IFP status,
Mitchell now seeks to proceed IFP on appeal. His appellate
IFP motion has a long history in this court that we need not
recount here. Suffice it to say that in January 2009, we
appointed the Georgetown University Law Center Appellate
Litigation Clinic as amicus curiae to support Mitchell’s
position.
II.
The PLRA prohibits a prisoner who has accumulated
three or more “strikes” from proceeding IFP in any civil
action or appeal in federal court. 28 U.S.C. § 1915(g). A
strike is a civil “action or appeal [brought] in a court of the
United States” by the prisoner while incarcerated “that was
dismissed on the grounds that it is frivolous, malicious, or
fails to state a claim upon which relief may be granted.” Id.
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Amicus argues that Mitchell has only two strikes. BOP
contends he has at least three.
Having thoroughly reviewed Mitchell’s litigation history,
we agree with amicus. Mitchell has two strikes, both
complaints dismissed for failure to state a claim. See Mitchell
v. Dep’t of Justice, No. 1:06-cv-107 (N.D. W. Va. Nov. 11,
2006); Mitchell v. Hawk-Sawyer, No. 6:01-cv-3324 (W.D.
Mo. July 19, 2001). None of the other sixty-three cases
qualifies as a strike. They were either (1) dismissed or
disposed of, at least in part, for reasons other than being
“frivolous, malicious, or fail[ing] to state a claim upon which
relief may be granted,” see Thompson v. Drug Enforcement
Admin., 492 F.3d 428, 437 (D.C. Cir. 2007) (holding that the
only cases that count as strikes are those identified in the
statute), (2) habeas petitions, see Blair-Bey v. Quick, 151 F.3d
1036, 1039 (D.C. Cir. 1998) (holding that habeas cases are
not strikes), or (3) appellate affirmances of district court
dismissals rather than dismissals of appeals, see Thompson,
492 F.3d at 436 (holding that the PLRA “speaks only of
dismissals, not affirmances”). Accordingly, the PLRA does
not prohibit Mitchell from proceeding IFP.
This, however, does not end our analysis. The
government argues that we should nonetheless deny Mitchell
IFP status as a discretionary matter under Butler, where we
held that courts have authority to deny IFP status to prisoners
who abuse the privilege but who are not technically barred by
the PLRA. 492 F.3d at 445.
We believe the best solution to [the problem of
abusive filers] lies in exercising our
discretionary authority to deny IFP status to
prisoners who have abused the privilege. Our
ability to do so derives from both the PLRA
5
itself, and our more general supervisory
authority to manage our docket so as to
promote[] the interests of justice.
Id. at 444–45 (alteration in original) (internal quotation marks
and citation omitted). According to the government, the
“number, frequency, content, and disposition” of Mitchell’s
sixty-five federal cases “reflect an unmistakable pattern of
abuse.” Appellee’s Br. 24.
Amicus argues that in determining whether to invoke
Butler we should consider only some of these sixty-five cases.
Specifically, insisting that the Butler rule is designed to
prevent abuse of this court’s processes, amicus asks that we
look only to the three cases Mitchell has filed in the D.C.
Circuit. We disagree. In Butler itself we considered cases the
prisoner had filed not just in this court, but also in our district
court and in the District Court of Maryland. 492 F.3d at
446–47 & n.8 & 9; see also Hurt v. Soc. Sec. Admin., 544
F.3d 308, 309 (D.C. Cir. 2008) (referring to cases filed in the
district courts as part of the evidence of Hurt’s litigation
history). Even in In re Sindram, 498 U.S. 177 (1991), on
which amicus relies, the Supreme Court denied IFP status in
part because the petitioner had raised the same issue “in five
different state and federal courts on 27 prior occasions.” Id.
at 179. Moreover, the PLRA itself directs courts to consider
cases filed “in a court of the United States,” 28 U.S.C. §
1915(g), and we see no reason to consider a smaller set of
cases when exercising our Butler discretion. The point is this:
we deny IFP status to prisoners who have abused the
privilege, and it would make no sense to disregard evidence
that a prisoner who has yet to abuse the privilege here has
blatantly abused it elsewhere.
6
Offering a second reason for considering fewer than all
sixty-five cases, amicus points out that during the proceedings
leading up to this appeal, the government had identified only
twelve cases, but that in its appellate brief it listed a total of
sixty-three (not including the district court or appellate stages
of the instant case). According to amicus, because the
government had “multiple opportunities to identify the cases
on which it wishes to rely,” we should limit our evaluation of
Mitchell’s IFP eligibility to the twelve previously identified
cases. Amicus Curiae Reply Br. 6. Again, we disagree.
Evaluating a prisoner’s entitlement to IFP status is not a
traditional adversarial proceeding where we serve as an
“arbiter[] of legal questions presented and argued by the
parties” and decline to consider arguments raised too late in
order to prevent unfairness. McBride v. Merrell Dow &
Pharma., Inc., 800 F.2d 1208, 1211 (D.C. Cir. 1986) (internal
quotation marks omitted). Rather, Butler calls on us to
exercise our discretion to protect the federal courts from
abusive filers, and proper exercise of that discretion requires
that we act on the basis of as much information as we can
obtain. Indeed, amicus could hardly object if we had
uncovered the additional cases ourselves, as often happens in
IFP proceedings.
At oral argument, amicus conceded that if we consider all
sixty-five cases, Mitchell qualifies under Butler as an abusive
filer. This time we agree. In determining whether to exercise
our Butler discretion, we consider the “number, content,
frequency, and disposition of the petitioner’s previous
filings.” Butler, 492 F.3d at 445. Mitchell has filed sixty-five
cases over fifteen years. All sought the same relief, and all
were unsuccessful. Mitchell’s record is comparable to those
of others whose IFP status we have denied. See, e.g., Hurt,
544 F.3d at 309 (identifying “more than seventy appeals” in
two years, all unsuccessful and many frivolous, such as one
7
against the Declaration of Independence). Indeed, Mitchell’s
record—sixty-five cases over fifteen years—is even worse
than Butler’s, who in eight years had filed twenty-five
unsuccessful cases raising the same legal issue. Butler, 492
F.3d at 446.
Again, however, this does not end our task. Amicus
urges us to recognize an exception under Butler for prisoners
facing an imminent danger of serious physical injury and to
find that Mitchell qualifies for it. The government has no
objection to such an exception, but insists that Mitchell fails
to make the cut.
For several reasons, we agree with the parties that we
should recognize an endangerment exception under Butler.
For one thing, it would comport with the considered policy
judgment of Congress as expressed in the PLRA, which
contains an exception to the three-strikes rule for prisoners
who face “imminent danger of serious physical injury.” 28
U.S.C. § 1915(g). As the Supreme Court has instructed,
absent countervailing arguments, “courts can, and indeed
should, be guided by the federal policies reflected in
congressional enactments.” Heck v. Humphrey, 512 U.S. 477,
488 n.9 (1994). Adopting an endangerment exception to
Butler that mirrors the PLRA’s also creates a uniform IFP
policy in this circuit, and the Supreme Court has recently
emphasized the value of such uniformity. Kansas v.
Colorado, 129 S. Ct. 1294, 1298 (2009) (crafting a
discretionary rule by mirroring a statutory rule applicable in
similar cases because “the best approach is to have a uniform
rule that applies in all federal cases”). Finally, although IFP
status may be constitutionally denied to prisoners who have
abused the privilege, see Tucker v. Branker, 142 F.3d 1294,
1299 (D.C. Cir. 1998), recognizing an imminent danger
exception eases any constitutional tension that might result
8
from denying access to the courts to prisoners facing life-
threatening conditions.
This, then, brings us to the final question: Does Mitchell
qualify under the imminent danger exception? As with the
PLRA, we assess the alleged danger at the time Mitchell filed
his complaint and thus look only to the documents attesting to
the facts at that time, namely his complaint and the
accompanying motion for IFP status. See Ibrahim v. District
of Columbia, 463 F.3d 3, 6 (D.C. Cir. 2006) (“In determining
whether [the petitioner] qualifies [for the imminent danger
exception], we look to the complaint . . . .”). We construe his
complaint liberally and accept its allegations as true. Id. In
so doing, we reject the government’s argument that we should
instead subject Mitchell’s allegations to the pleading standard
the Supreme Court set forth earlier this year in Ashcroft v.
Iqbal, 129 S. Ct. 1937 (2009). There, the Court held that “a
complaint must contain sufficient factual matter,” alleged in
non-conclusory terms, “to state a claim to relief that is
plausible on its face.” Id. at 1949 (internal quotation marks
omitted). This standard, however, has no applicability to IFP
proceedings where we are exercising our discretion to grant or
withold a privilege made available by the courts. See supra at
6. IFP proceedings are nonadversarial and implicate none of
the discovery concerns lying at the heart of Iqbal. See 129 S.
Ct. at 1950 (“Rule 8 marks a notable and generous departure
from the hyper-technical, code-pleading regime of a prior era,
but it does not unlock the doors of discovery for a plaintiff
armed with nothing more than conclusions.”). Of course, if
IFP status is granted, defendants remain free to rely on Iqbal
in support of a motion to dismiss the underlying complaint.
But when considering IFP eligibility, we shall continue using
the traditional standards applicable to pleadings by pro se
prisoners.
9
Amicus contends that Mitchell’s complaint and IFP
motion present two types of imminent danger. First, Mitchell
alleged that even though BOP knew he had testified for the
government, it illegally transferred him to USP Florence, a
prison known for “murders and assaults on
. . . anyone who has been known as a snitch,” and where he
was nearly murdered in October 2003. Compl. 3. Although
we disagree with the government that these allegations are
insufficiently specific, we do agree that Mitchell has failed to
allege that the danger he faces is imminent. Not only did
Mitchell wait until seventeen months after the alleged attack
to file his complaint, but neither the complaint nor his IFP
motion alleges any ongoing threat. Cf. Ashley v. Dilworth,
147 F.3d 715, 717 (8th Cir. 1998) (finding imminent danger
where the inmate alleged that prison officials knowingly
placed him near those who are likely to attack him because
the complaint alleged an ongoing pattern of such placements
and was filed “very shortly after the last attack”).
Mitchell’s second imminent danger claim rests on his
allegations regarding untreated hepatitis. Specifically, he
alleged that he “need[s] medical treatment for Hepatitis B &
C which is incurable and administered to plaintiff at USP
Florence.” Compl. 8. In his IFP motion, he claimed that he
faces imminent danger because he “needs medical treatment
for critical impairments.” Mot. for IFP 2. According to the
government, these allegations fall short because (1) they have
no connection to his Privacy Act claim, see Pettus v.
Morgenthau, 554 F.3d 293, 296 (2d Cir. 2009) (denying the
prisoner’s IFP motion because the complaint “does not seek
any relief specifically related to the abusive conditions” of
which he complained), and (2) they are insufficiently specific
to establish an imminent danger to health. We have no need
to address the government’s first point because we agree with
its second.
10
Although we have held that “failure to provide adequate
treatment for Hepatitis C, a chronic and potentially fatal
disease, constitutes ‘imminent danger,’” see Ibrahim, 463
F.3d at 6–7, the prisoner’s factual allegations must be
sufficiently specific for us to infer that the prisoner has a
serious disease and that prison officials have failed to treat it.
Absent such allegations, we have no basis for evaluating the
imminence or dangerousness of the threat the prisoner faces.
Moreover, unless we require prisoners to demonstrate the
actual existence of an imminent threat, otherwise disqualified
filers could obtain IFP status simply by adding general
allegations of endangerment. As the Third Circuit, sitting en
banc, explained in the context of the PLRA’s endangerment
exception, “any time that an otherwise disqualified prisoner
alleges that any threat of physical injury occurred at any time,
that prisoner [would] automatically qualif[y] for the imminent
danger exception. [This] interpretation of the . . . exception
thereby swallows the rule. . . . [W]e refuse to conclude that
with one hand Congress intended to enact a statutory rule . . .
but, with the other hand, it engrafted an open-ended exception
that would eviscerate the rule.” Abdul-Akbar v. McKelvie,
239 F.3d 307, 315 (3d Cir. 2001) (en banc).
The government points to several cases where the
allegations were sufficiently specific to qualify for the
endangerment exception. In Ibrahim, we found an imminent
danger where the prisoner described in detail the denial of
particular medical treatment by named persons on specific
dates. Complaint for Damages at 2–18, Ibrahim, 463 F.3d 3.
Similarly, the Ninth Circuit found imminent danger where the
complaint “recounted in detail” the threat posed by the
prison’s policy of failing to screen inmates for communicable
diseases. Andrews v. Cervantes, 493 F.3d 1047, 1050 (9th
Cir. 2007). And the Eleventh Circuit found imminent danger
where the prisoner sued the facility’s medical officials and
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described treatment that a doctor had prescribed but that
prison officials denied. Complaint Under the Civil Rights Act
at 1, 6–7, Brown v. Johnson, 387 F.3d 1344 (11th Cir. 2004).
By contrast, Mitchell’s allegations are vague and
unspecific. He says he “need[s] medical treatment,” but he
never tells us when he asked for assistance, what kind of
treatment he requested, who he asked, or who denied it.
Indeed, he never even clearly states that medical attention was
actually denied. Had Mitchell alleged any of these facts, we
might treat his motion differently. Absent such allegations,
however, and even viewing his complaint through the
forgiving lens applicable to pro se pleadings, we simply
cannot determine whether Mitchell faces an imminent danger.
Given this, and given the need to ensure that the
endangerment “exception [does not] swallow the rule,” we
conclude that Mitchell’s allegations are insufficient.
III.
For the foregoing reasons, we deny the motion for IFP
status on appeal. If Mitchell wishes to proceed, he has thirty
days from the date of this opinion to pay the filing fee.
So ordered.