Jail cell Photo: shutterstock.com

The U.S. Court of Appeals for the Second Circuit extended limited power to district courts to review prisoners’ assertions of fear of imminent danger while considering their bids to initiate court proceedings despite being banned on proceeding in forma pauperis.

The decision established proper procedure in litigation launched by a prisoner who had accumulated “three strikes”—or three failed prison conditions complaints—under the Prison Litigation Reform Act.

The appellate panel called for courts in the Second Circuit to take a uniform approach in weighing materials outside of the complaint as part of a limited inquiry into a fear of imminent danger claim.

The panel—composed of Circuit Judges José Cabranes, Christopher Droney and Richard Sullivan—upheld the July 2017 decision by U.S. District Judge David Larimer of the Western District of New York to dismiss the pro se complaint filed by Eon Shepherd, an inmate at the Five Points Correctional Facility. He claimed his chronic ailments weren’t properly being dealt with by prison officials, requesting to proceed in forma pauperis, without filing court fees.

After initially granting the request, Shepherd was asked by the court why he should be allowed to proceed as such, noting that he’d accumulated three “strikes”—suits that were dismissed outright—previously, which would normally bar him from proceeding in forma pauperis under the PLRA.

Shepherd claimed his situation qualified him for an exception under the law because he was in imminent danger of serious physical injury. Attorneys from the New York State Attorney General’s Office argued that not only had Shepherd misled the court by under-counting how many lawsuits he’d filed, but that he was in no imminent danger, providing sworn declarations from Shepherd’s doctors and medical records to the contrary.

In July 2017, the district court dismissed Shepherd’s complaint with prejudice, agreeing that he had deliberately misled the court by not disclosing three prior “strikes” and that he faced no imminent danger concerns.

On appeal, Shepherd argued the district court improperly considered materials beyond the complaint to determine his qualification for the imminent danger exception, and that he was not provided adequate notice that it was considering dismissing his complaint with prejudice and not with a lesser penalty.

In granting district courts the power to consider facts outside of the complaint, the panel found that doing so was in accord with the PLRA’s principle purpose of deterring frivolous prisoner lawsuits and appeals. A limited inquiry is “crucial” to determine the threat of imminent danger, as the alternative would be simply allowing the in forma pauperis status to be granted whenever an assertion was made.

“Such a rigid application would erode the efficacy of the PLRA’s three‐strikes rule, by allowing ‘easy evasion’ of the rule if the litigant uttered the right words,” the panel stated, quoting from precedent.

Applying this standard to Shepherd’s case, the panel found Larimer did not err in his finding that the claims were without foundation. The doctors’ testimony that Shepherd is provided both pain alleviation medication and ambulatory aids to get around in prison, on top of incredulous muscular atrophying claims, showed Shepherd’s claims to be “both circular and completely conclusory.”

On the issue of proper notice, Shepherd claimed he was facing sanctions by the court for deliberately omitting all of his “strike” cases in his complaint. The panel found this, too, was without merit, as Shepherd “unquestionably” received proper notice and was made aware of the possible repercussions he faced.

Shepherd was represented on appeal by Holland & Knight of counsel Michael Starr and associate Sheila Shen. Neither responded to a request for comment.

A spokeswoman for the state attorney general’s office did not respond to a request for comment.


Lawyer-Judge Couple’s Defamation Suit Against New York Post Dismissed

Class Action Lawsuit Hits Post-Release Date Incarceration of Mentally Ill in NY State

Lawsuit Alleging Sexual Assault at Rikers Island Survives Summary Judgment