The summaries of the Colorado Court of Appeals published opinions constitute no part of the opinion of the division but have been prepared by the division for the convenience of the reader. The summaries may not be cited or relied upon as they are not the official language of the division. Any discrepancy between the language in the summary and in the opinion should be resolved in favor of the language in the opinion.
SUMMARY January 11, 2024
2024COA5
No. 23CA0469, Johnson v McGrath — Courts and Court Procedure — Inmate Lawsuits — Successive Claims — Imminent Danger of Serious Physical Injury
A division of the court of appeals determines, as a matter of
first impression, how a court should analyze an inmate’s claim that
the “imminent danger of serious physical injury” exception under
section 13-17.5-102.7(2), C.R.S. 2023, is applicable, which would
entitle the inmate to proceed as a poor person despite being barred
under the three strikes rule in section 13-17.5-102.7(1). The
division concludes that to successfully allege the imminent danger
exception, (1) the allegation of serious physical injury must be
specific; (2) the specifically alleged danger must be imminent; and
(3) there must be allegations showing a nexus between the claims
for relief and the allegation of imminent serious physical injury. COLORADO COURT OF APPEALS 2024COA5
Court of Appeals No. 23CA0469 El Paso County District Court No. 23CV33 Honorable Gregory R. Werner, Judge
Jabari J. Johnson,
Plaintiff-Appellant,
v.
Meridith McGrath,
Defendant-Appellee.
JUDGMENT AFFIRMED
Division C Opinion by JUDGE KUHN J. Jones and Dunn, JJ., concur
Announced January 11, 2024
Jabari J. Johnson, Pro Se
No Appearance for Defendant-Appellee ¶1 Plaintiff, Jabari J. Johnson, is an inmate in a Colorado
Department of Corrections (DOC) facility and a frequent filer in the
Colorado courts. In this action, Johnson challenges the district
court’s judgment dismissing his civil complaint for failure to pay a
filing fee. He contends that he alleged the imminent danger of
serious physical injury exception (the imminent danger exception)
to the “three strikes rule” on prisoner filings, entitling him to
proceed in forma pauperis (IFP).1
¶2 We hold that when an inmate is barred from proceeding IFP
because of the three strikes rule, the district court must review for
— but need not make a separate finding regarding — the imminent
danger exception. Here, while Johnson raised the issue of
imminent danger of serious physical injury, when analyzed under
the test set forth below, he did not sufficiently allege the imminent
danger exception. Thus, the district court did not err by denying
1 The “three strikes rule” bars an inmate from proceeding IFP if the
inmate has brought three or more civil actions based upon prison conditions that have been dismissed on the grounds that they were frivolous, groundless, or malicious or failed to state a claim upon which relief may be granted. § 13-17.5-102.7, C.R.S. 2023.
1 Johnson’s motion to proceed IFP because he is barred by the three
strikes rule. We affirm.
I. Background
¶3 Johnson’s complaint challenges conditions related to his
incarceration and complains about the actions of a DOC employee.
Johnson requested that the district court allow him to proceed IFP
under section 13-17.5-103, C.R.S. 2023, which would allow him to
move forward with his inmate lawsuit without prepaying service
and filing fees.
¶4 Upon reviewing Johnson’s request to proceed IFP, the district
court applied the three strikes rule and denied his request based on
section 13-17.5-102.7(1), C.R.S. 2023. It found that Johnson had,
on three or more occasions, brought civil actions based on prison
conditions that had been dismissed on the grounds that they were
frivolous, groundless, or malicious or failed to state a claim upon
which relief may be granted. The district court then dismissed
Johnson’s suit for failure to pay filing and service fees, and Johnson
appealed. On appeal, Johnson contends that the district court
2 erred by denying his request to proceed IFP because he alleged that
he was in imminent danger of serious physical injury.2
¶5 The district court did not address section 13-17.5-102.7(2),
which provides an exception to the three strikes rule for an inmate
who “alleges sufficient facts which, if assumed to be true, would
demonstrate that the inmate is in imminent danger of serious
physical injury.” Implicit in Johnson’s contention on appeal is the
question whether the district court was required to make a finding
on the exception to the three strikes rule.
¶6 Johnson has filed eight cases in the El Paso County District
Court (20CV112, 20CV121, 20CV274, 21CV44, 21CV320, 22CV52,
22CV186, and 22CV208), and all have been dismissed. On
September 1, 2022, a division of our court issued an opinion in
Johnson v. Executive Director of the Colorado Department of
Corrections, (Colo. App. No. 21CA1439, Sept. 1, 2022) (not
published pursuant to C.A.R. 35(e)). In that case, Johnson filed an
appeal from a Fremont County District Court order dismissing his
2 Johnson raised three iterations of this same issue in his notice of
appeal. However, in his opening brief, he argues all three issues as one. Therefore, we treat his claim as a single contention.
3 complaint for failing to pay filing fees. In affirming the order, the
division noted that Johnson had filed twenty-five complaints in
Fremont County in 2020 alone. Eleven of those complaints had
been dismissed as frivolous, groundless, and vexatious, and
fourteen had been dismissed for failure to state a claim upon which
relief could be granted. There is no dispute that Johnson has
accumulated more than the three strikes required by section
13-17.5-102.7(1).
II. Standard of Review and Applicable Law
¶7 Whether a litigant is indigent and thus allowed to file a civil
action without payment of costs is generally a matter committed to
the trial court’s discretion. Collins v. Jaquez, 15 P.3d 299, 301
(Colo. App. 2000). The ability to proceed without paying costs “in a
civil case is a privilege, not a right, fundamental or otherwise.”
Farmer v. Raemisch, 2014 COA 3, ¶ 12.
¶8 Section 13-17.5-102.7 and several related statutes limit the
trial court’s discretion to permit IFP filings in civil actions brought
by prisoners. Whether the trial court properly applied those
statutes is a question of law we review de novo. See Schwartz v.
Owens, 134 P.3d 455, 459 (Colo. App. 2005). We also review de
4 novo a district court’s order dismissing a case as a matter of law
and questions of statutory construction. Cisneros v. Elder, 2022
CO 13M, ¶ 21; Rueb v. Rich-Fredericks, 2020 COA 168, ¶ 7.
¶9 “In construing a statute, our goal is to effectuate the
legislature’s intent.” Dep’t of Revenue v. Agilent Techs., Inc., 2019
CO 41, ¶ 16. In doing so, we “consider the entire statutory scheme
to give consistent, harmonious, and sensible effect to all of its parts,
and we construe words and phrases in accordance with their plain
and ordinary meanings.” Cisneros, ¶ 21 (quoting Ryser v. Shelter
Mut. Ins. Co., 2021 CO 11, ¶ 14). If the statutory language is clear
and unambiguous, then we do not resort to other rules of statutory
construction, and we presume that the General Assembly intends a
just and reasonable result. Id. “We, however, are not at liberty to
alter the wording of a statute. Nor may we interpret statutory
language so as to render any of that language superfluous.” Harvey
v. Cath. Health Initiatives, 2021 CO 65, ¶ 33.
¶ 10 Johnson appears pro se, and his complaint is difficult to read;
however, “[p]leadings by pro se litigants must be broadly construed
to ensure that they are not denied review of important issues
because of their inability to articulate their argument like a lawyer.”
5 Jones v. Williams, 2019 CO 61, ¶ 5. It is not this court’s role,
however, to rewrite a pro se litigant’s pleadings. Nor may we act as
an advocate for a pro se litigant. See People v. Cali, 2020 CO 20,
¶ 34.
III. The District Court Must Review for, But Does Not Need to Make a Specific Finding Regarding, Section 13-17.5-102.7(2)
¶ 11 To address Johnson’s contention, we must first determine
whether the imminent danger exception to the three strikes rule
requires the district court to make explicit findings about the
alleged danger.
¶ 12 Section 13-17.5-103 states that an inmate is not prohibited
from filing a civil action just because “the inmate has no assets and
no means by which to pay” fees. The three strikes rule in section
13-17.5-102.7(1) is an exception to that general rule:
No inmate who on three or more occasions has brought a civil action based upon prison conditions that has been dismissed on the grounds that it was frivolous, groundless, or malicious or failed to state a claim upon which relief may be granted or sought monetary relief from a defendant who is immune from such relief, shall be permitted to proceed as a poor person in a civil action based upon prison conditions under any statute or constitutional provision.
6 ¶ 13 Section 13-17.5-103(2) is, in turn, an exception to subsection
(1). It provides that an inmate may proceed in an action,
notwithstanding having three strikes, without paying the filing fee
“if the judge finds that the action alleges sufficient facts which, if
assumed to be true, would demonstrate that the inmate is in
imminent danger of serious physical injury.” § 13-17.5-102.7(2).
¶ 14 As an initial matter, we conclude that a district court
reviewing a motion and complaint under section 13-17.5-103 and
section 13-17.5-102.7 must determine whether the imminent
danger exception applies. The court should review the initial filings
for assertions that, if taken as true, would demonstrate the inmate
is in imminent danger of serious physical injury and would thus
trigger the exception in subsection (2).3 This is so because an
inmate’s ability to proceed without paying filing fees is determined
before a responsive pleading is filed, and, therefore, the district
3 We note that Johnson used preprinted form JDF 201 to request a
waiver of filing fees. That form does not provide any space to address the imminent danger exception. See JDF 201, Inmate Motion Requesting to File Without Prepayment of Filing/Service Fees (revised Apr. 2018), https://perma.cc/G4FX-DFAR. Thus, any allegations about the exception would only have been in the complaint.
7 court must undertake that review on its own to give effect to the
statute.
¶ 15 Turning to the findings themselves, the plain language of
section 13-17.5-102.7 demonstrates that the district court is not
required to make specific factual findings regarding the imminent
danger exception in every case. However, if the district court
determines that the exception applies, then it should make
whatever findings are appropriate under the facts of the case.
¶ 16 Subsection (2) provides that an inmate may proceed IFP,
notwithstanding the three strikes rule, if the court finds imminent
danger of serious physical injury. The structure of this clause is
conditional. It envisions that a judge may or may not make
findings. This also tracks the purpose of subsection (2), which is an
exception to an exception. There would be no reason for the court
to make findings about the imminent danger of serious physical
injury if the inmate hasn’t pleaded any allegations to support the
exception in the first place.
¶ 17 Thus, when an inmate with three strikes makes a proper
request to proceed IFP, section 13-17.5-102.7(2) requires the
district court to review the initial filings to see if the inmate has
8 alleged sufficient facts, if taken as true, to trigger the imminent
danger exception to the three strikes rule. If the inmate alleges
sufficient facts establishing that this exception applies, as described
below, then the district court should allow the plaintiff to proceed
IFP. See § 13-17.5-102.7(2). But if the plaintiff fails to allege
sufficient facts, then subsection (2) does not apply, and the district
court must deny the request to proceed IFP under subsection (1).
IV. Imminent Danger of Serious Physical Injury Test
¶ 18 Having articulated the review process required by section
13-17.5-102.7, we turn to Johnson’s contention that the district
court erred by denying his request to proceed IFP because he
alleged that he was in imminent danger of serious physical injury.
¶ 19 The district court denied Johnson’s request, without making
specific findings regarding the imminent danger exception, because
he had reached his three-strike limit.4 In his complaint, Johnson
4 In Johnson v. Executive Director of the Colorado Department of
Corrections, (Colo. App. No. 21CA1439, Sept. 1, 2022) (not published pursuant to C.A.R. 35(e)), a division of this court addressed whether Johnson has incurred three strikes under section 13-17.5-102.7(1), C.R.S. 2023. He has. Therefore, we limit our analysis to whether he has alleged sufficient facts in his initial filings demonstrating that he is in imminent danger of serious
9 broadly alleged that he was in “imminent danger” and expressed a
fear of being killed, assaulted, or harmed.
¶ 20 No Colorado case has addressed how courts should analyze
whether an inmate has alleged “sufficient facts which, if assumed to
be true, would demonstrate that the inmate is in imminent danger
of serious physical injury.” § 13-17.5-102.7(2). Because section
13-17.5-102.7 is similar to its federal counterpart, we find
analogous federal cases persuasive and determine that courts
should apply a three-part test to resolve this question. See Furlong
v. Gardner, 956 P.2d 545, 551 (Colo. 1998) (“In interpreting a state
statute, we often turn to the analogous federal statute and related
case law.”).
¶ 21 We conclude that to successfully allege section
13-17.5-102.7(2)’s imminent danger exception, (1) the allegation of
serious physical injury must be specific; (2) the specifically alleged
danger must be imminent; and (3) there must be allegations
showing a nexus between the claims for relief and the allegation of
imminent serious physical injury.
physical injury, entitling him to proceed IFP despite his numerous other filings.
10 A. Specific Allegation of Serious Physical Injury
¶ 22 First, the allegation of serious physical injury must be specific.
Under section 13-17.5-102.7(2), “the judge [must] find[] that the
action alleges sufficient facts” to invoke the exception. By the
statute’s plain language, sufficient facts are those that, when taken
as true, demonstrate a claim for imminent danger of serious
physical injury. As with any civil claim, the factual allegations
must be specific enough to support a claim for relief. See, e.g.,
Patterson v. James, 2018 COA 173, ¶ 23 (“To survive summary
dismissal for failure to state a claim, a party must plead sufficient
facts that, if taken as true, suggest plausible grounds to support a
claim for relief.” (citing Warne v. Hall, 2016 CO 50, ¶ 24)). Claims of
physical injury that are so vague or conclusory as to deprive the
district court of the ability to make the required findings are not
sufficient to support the exception to the three strikes rule in
section 13-17.5-102.7(2). See Warne, ¶ 27 (concluding that claims
that are conclusory are not entitled to an assumption that they are
true).
¶ 23 This interpretation aligns with other jurisdictions’ reading of
28 U.S.C. § 1915(g), the federal three strikes rule, which contains a
11 similar exception.5 See Hafed v. Fed. Bureau of Prisons, 635 F.3d
1172, 1180 (10th Cir. 2011) (If alleging lack of medical care, an
inmate “should make a ‘specific reference as to which of the
defendants may have denied him what medication or treatment for
what ailment on what occasion.’ He should identify at least ‘the
general nature of the “serious physical injury” he asserts is
imminent.’ ‘[V]ague and utterly conclusory assertions’ are
insufficient. ‘[C]redible, uncontroverted allegations of physical
threats and attacks’ would be sufficient, however.”) (citations
omitted), abrogated on other grounds by Coleman v. Tollefson, 575
U.S. 532, 534 (2015); White v. Colorado, 157 F.3d 1226, 1231 (10th
Cir. 1998).
B. Allegation that Danger of Serious Physical Injury is Imminent
¶ 24 Second, the specific allegation of serious physical injury must
“demonstrate that the inmate is in imminent danger.”
§ 13-17.5-102.7(2) (emphasis added). “Danger” means “[p]eril;
exposure to harm, loss, pain, or other negative result.” Black’s Law
5 The federal statute lacks a separate subsection for the imminent
danger exception and does not afford inmates an assumption of truth in their allegations.
12 Dictionary 493 (11th ed. 2019). In the criminal context, the term
“imminent danger” is defined as “[a]n immediate, real threat to one’s
safety that justifies the use of force in self-defense.” Id. “Imminent”
alone means “threatening to occur immediately; dangerously
impending.” Id. at 898. Common language dictionaries define
imminent as “ready to take place: happening soon.” Merriam-
Webster Dictionary, https://perma.cc/5QRT-YTT5.
¶ 25 Section 13-17.5-102.7(2)’s present tense “is,” combined with
the adjective “imminent,” dictates that the “danger” includes only
harms that are occurring now or immediately thereafter. Under
this factor, an inmate must allege a danger of serious physical
injury that is happening at the time of filing or is about to happen.
This encompasses harm that is ongoing at the time of filing.
However, it does not encompass a danger that has already occurred
(and has ended) or might occur in the remote future. See Fuller v.
Wilcox, 288 F. App’x 509, 511 (10th Cir. 2008) (“In order to meet the
‘imminent danger’ requirement, ‘the harm must be imminent or
occurring at the time the complaint is filed.’” (quoting Ciarpaglini v.
Saini, 352 F.3d 328, 330 (7th Cir. 2003))); Abdul-Akbar v. McKelvie,
239 F.3d 307, 313 (3d Cir. 2001) (“Someone whose danger has
13 passed cannot reasonably be described as someone who ‘is’ in
danger, nor can that past danger reasonably be described as
‘imminent.’”); Ashley v. Dilworth, 147 F.3d 715, 717 (8th Cir. 1998)
(“As the statute’s use of the present tense verbs ‘bring’ and ‘is’
demonstrates, an otherwise ineligible prisoner is only eligible to
proceed IFP if he is in imminent danger at the time of filing.
Allegations that the prisoner has faced imminent danger in the past
are insufficient to trigger this exception to § 1915(g).”). Thus, an
inmate seeking monetary damages based on a prior alleged assault
would not satisfy this imminence factor as that claim seeks to
recover damages for a past harm rather than to prevent an
imminent danger of serious physical injury.
C. Nexus Between Claims and Alleged Danger of Serious Physical Injury
¶ 26 Third, there must be a nexus between the claim and the
allegation of imminent serious physical injury. Put simply, an
inmate alleging imminent danger must also seek relief that would
alleviate that danger.
¶ 27 In enacting subsection (2)’s exception to the three strikes rule,
the legislature created a last resort for individuals who are
14 genuinely in danger of serious physical harm despite their repeated
prior frivolous, groundless, malicious, or meritless filings based on
prison conditions. An inmate facing an imminent danger of serious
physical injury can file suit seeking to prevent that harm. However,
if an inmate is seeking relief that is designed to remedy past wrongs
or would not alleviate the imminent danger alleged, then the claims
cannot support the invocation of the imminent danger exception
under section 13-17.5-102.7(2).
¶ 28 This nexus requirement ensures that the imminent danger
exception to the three strikes rule actually addresses the alleged
danger while also advancing “the General Assembly’s goal of
deterring frivolous and meritless prisoner lawsuits.” Farmer, ¶ 18.
The General Assembly’s legislative declaration for title 13, article
17.5 says that
the state has a strong interest in limiting substantially frivolous, groundless, or vexatious inmate lawsuits that impose an undue burden on the state judicial system. While recognizing an inmate’s right to access the courts for relief from unlawful state actions, the [G]eneral [A]ssembly finds that a significant number of inmates file substantially frivolous, groundless, or vexatious lawsuits.
15 . . . The [G]eneral [A]ssembly, therefore, determines that it is necessary to enact legislation that promotes efficiency in the disposition of inmate lawsuits by providing for preliminary matters to be determined by magistrates and to provide for sanctions against inmates who are allowed to file claims against public defendants and whose claims are dismissed as frivolous.
§ 13-17.5-101(1)-(2), C.R.S. 2023.
¶ 29 Thus, for example, if an inmate alleges a specific impending
assault, the claim for relief must be directed toward that alleged
harm. But a claim for an injunction requiring a specific food at the
cafeteria would not show the necessary nexus between imminent
danger and the sought after remedy.
¶ 30 Federal courts also often apply the requirement that there be a
nexus between an inmate’s claims and the imminent danger when
analyzing petitions under § 1915(g). See, e.g., Pettus v. Morgenthau,
554 F.3d 293, 296 (2d Cir. 2009) (“We agree with the district court
that § 1915(g) allows a three-strikes litigant to proceed IFP only
when there exists an adequate nexus between the claims he seeks
to pursue and the imminent danger he alleges.”); Ball v. Hummel,
577 F. App’x 96, 96 n.1 (3d Cir. 2014) (per curiam) (“To fulfill the
‘imminent danger’ requirements, she must demonstrate an
16 adequate nexus between the claims [s]he seeks to pursue and the
‘imminent danger [s]he alleges.’” (quoting Pettus, 554 F.3d at 296))
(alterations in original); Pinson v. U.S. Dep’t of Just., 964 F.3d 65,
73 (D.C. Cir. 2020) (“We see no need to articulate a precise test for
evaluating section 1915(g)’s nexus requirement because, whatever
the standard, Gorbey’s claims bear no relationship at all to the
dangers alleged.”); McFadden v. U.S. Dep’t of Just., 270 F. Supp. 3d
82, 89 (D.D.C. 2017) (“[T]he language of the exception itself is, at
most, incomplete; it neither imposes a nexus requirement nor
forecloses the imposition of such a requirement. But, more
importantly, the exception cannot be read in isolation from its
‘context’ and ‘place in the overall statutory scheme,’ and that
context supports a nexus requirement.”) (citations omitted). But see
Vandiver v. Prison Health Servs., Inc., 727 F.3d 580, 588 (6th Cir.
2013) (“[W]e decline to reach whether § 1915(g) incorporates a
nexus requirement, as [defendant] would not prevail even if we were
to adopt the Second Circuit standard.”); Barber v. Krepp, 680 F.
App’x 819, 821 (11th Cir. 2017) (per curiam) (declining to decide
whether “§ 1915(g)’s ‘imminent danger’ exception requires proof of
. . . a nexus” because, even if it did, the plaintiff had alleged such “a
17 nexus between the harm he has suffered and the defendant’s
inaction”).
¶ 31 The Second Circuit Court of Appeals articulated the rationale
for this rule well:
[T]here must be a nexus between the imminent danger a three-strikes prisoner alleges to obtain IFP status and the legal claims asserted in his complaint. . . . By analogy to our ordinary standing rules, we think that the statute requires that the prisoner’s complaint seek to redress an imminent danger of serious physical injury and that this danger must be fairly traceable to a violation of law alleged in the complaint.
The law of standing provides the most natural analogy for giving content to the nexus requirement because the statute identifies a particular injury-in-fact (i.e., the imminent danger of serious physical injury) that Congress singled out for special protection. . . .
. . . Absent some nexus between a complaint’s claims and its allegation that a plaintiff is under imminent danger of serious physical harm, the injury-in-fact that Congress so carefully excepted from the general requirement that a three-strikes litigant pay his filing fees could go unaddressed by the litigation — a result clearly contrary to the raison d’être of the exception itself. When, in contrast, a complaint seeks to redress an imminent danger that is fairly traceable to allegedly unlawful conduct complained of in the pleading, the three-strikes litigant has
18 shown that he fits squarely within § 1915(g)’s ‘escape hatch’ and that payment of a filing fee should be excused.
Pettus, 554 F.3d at 297-98.6
¶ 32 Therefore, to satisfy the third factor, an inmate’s complaint
must contain allegations showing a sufficient nexus between the
factual allegations of imminent physical injury and the legal claims
for which the inmate seeks redress.
V. Johnson’s Allegations
¶ 33 Johnson’s complaint fails to allege sufficient facts that, if
assumed to be true, would demonstrate that he is in imminent
danger of serious physical injury. Accordingly, the district court did
not err by denying his motion to proceed IFP.
A. Johnson’s Allegations Are Not Specific
¶ 34 Johnson’s complaint does not sufficiently articulate who is
subjecting him to imminent danger of serious physical injury.
6 Wimberly v. Ettenberg, 194 Colo. 163, 168, 570 P.2d 535, 539
(1977), provides the standing requirements under Colorado law: “The proper inquiry on standing is whether the plaintiff has suffered injury in fact to a legally protected interest as contemplated by statutory or constitutional provisions.”
19 While he does allege that he was or may be in danger, he fails to
make specific allegations tying individuals to that danger.
¶ 35 Johnson names Merideth McGrath as the defendant; however,
he does not say who she is in his complaint, his briefing, or the
provided record.7 Additionally, the vast majority of Johnson’s
claims do not assert credible, uncontroverted allegations of physical
threats and attacks. See Hafed, 635 F.3d at 1180. Instead, he
asserts vague, speculatory, and conclusory allegations against the
DOC or unnamed “COs,” which are presumably corrections officers.
¶ 36 For example, Johnson alleges the following in his complaint:
“DOC continues to place [Johnson] around enemies and
enemies in attempts to attack, placing [Johnson’s] life in
imminent danger, refusing [Johnson] [use] of [a]
wheelchair and other disability aids due to [Johnson’s]
disability.”
Johnson has a “fear of inmate assault, which has been
created by multiple DOC staff.”
7 His complaint implies that McGrath works for the DOC in a
supervisory position, but he does not say this, say what her role is, or say who she supervises or how she is connected to his imminent danger.
20 DOC staff are “[n]ot allowing medical or dental treatment
and refusing to bring him to medical treatment stating
that he has to walk when [Johnson] has a well-known
conversion disorder.”
DOC, in retaliation, is “attempting to try to kill
[Johnson].”
“[Johnson] has not been able to shower since 2019 . . . .
Staff have stated that [Johnson] has no records of
wheelchair orders, when [Johnson] does[,] retaliation
against him forcing [Johnson] to scoot and crawl on the
floor since 2019.”
“[Johnson], family, friends, lawyers, and Judges, have
numerous items of evidence proving an unsafe
environment, yet the Colorado courts do nothing but aid
the conspiracy to kill Mr. Johnson because of his
litigation.”
¶ 37 Johnson’s allegations vaguely allege a fear of assault, refusal
of medical treatment, and a deprivation of a wheelchair. These
vague and conclusory allegations do not constitute specific
allegations of fact that would justify invoking the imminent danger
21 exception. While Johnson expresses that he feels unsafe in the
prison environment, general assertions of fear of assault do not
support claims of imminent danger. White, 157 F.3d at 1231.
Instead, a defendant must provide “specific fact allegations of
ongoing serious physical injury, or of a pattern of misconduct
evidencing the likelihood of imminent serious physical injury.”
Fuller, 288 F. App’x at 511 (quoting Martin v. Shelton, 319 F.3d
1048, 1050 (8th Cir. 2003)). Johnson does not do so in this case.
¶ 38 Further, while refusing medical care may constitute an
imminent threat to physical well-being under some circumstances,
a defendant should specify who has denied him treatment, for what,
and on what occasion. See Hafed, 635 F.3d at 1180. Johnson’s
assertions are not specific, do not identify individuals, do not say
when he was denied treatment, and are vague and conclusory.
Thus, these allegations fail to demonstrate the first factor necessary
to meet the imminent danger exception.
¶ 39 However, unlike the allegations noted above, Johnson does
make one allegation that generally sets forth an action taken by
McGrath:
22 Merideth McGrath has full knowledge of the safety disability issues as she has been provided adequate documents of the COs and inmates along with paper forms proving such, yet she allows staff members at the [S]terling correctional facility to aid inmates in opening their door to allow them to come out of their cells so that the COs could open door only to [have] him assaulted because he is not afraid to litigate AND WILL NEVER STOP.”
¶ 40 Construed broadly, this claim alleges that McGrath has
allowed her subordinates to help other inmates assault Johnson.
Assuming what Johnson says is true, this claim still fails to
demonstrate imminent danger of serious physical injury because it
does not make specific allegations. It is impossible to tell from the
complaint whether corrections officers are releasing other inmates
from their cells in the normal course of the day, or whether
Johnson alleges that those officers are creating a situation that
specifically targets Johnson. Nor does it specifically identify how
McGrath is involved, other than the vague allegation that she may
“allow” her staff to be involved.
¶ 41 We thus conclude that Johnson’s allegations of serious
physical injury are not sufficiently specific.
23 B. Remaining Factors
¶ 42 Johnson’s claims fail under the remaining two factors as well.
The assault allegation relates to past conduct. It is not ongoing or
about to occur. Johnson uses a mix of past and present tense, but
even construing his pleading as broadly as possible, he does not
make sufficient factual allegations showing that McGrath — or even
the unnamed corrections officers — are currently or about to open
his cell doors to have him assaulted by the other inmates. We
therefore conclude that Johnson has not alleged that the assault is
imminent.8
¶ 43 Likewise, Johnson’s complaint fails to meet factor three
because there is no nexus between his claims and his factual
allegations of serious physical injury. Johnson makes three claims
for relief: (1) $20,000,000 in punitive and compensatory damages
under “federal 1983 relief”; (2) $350,000 in punitive and
compensatory damages under state law; and (3) relief under an
8 We note that Johnson appears to satisfy the second factor through
his allegation that he has been deprived of a wheelchair. However, this claim fails on the other two elements and, therefore, does not entitle him to relief.
24 “interstate compact” because of retaliation and not receiving
medical treatment and accommodations.9 Due to their
retrospective nature, they would not redress an imminent danger of
serious physical injury.10 There is no nexus between these claims
and Johnson’s allegation of assault.
¶ 44 In sum, Johnson’s claims do not satisfy the requirements of
section 13-17.5-102.7(2) because they fail to (1) specifically allege
serious physical injury; (2) allege imminent danger (with the
possible exception of his wheelchair claim); and (3) establish a
nexus between his claims for relief and his allegations of imminent
danger of serious physical injury. All three factors must be met for
an inmate’s claims to qualify for the exception in section
13-17.5-102.7(2). Therefore, we conclude that Johnson’s complaint
fails to allege sufficient facts entitling him to application of the
imminent danger exception to the three strikes rule under section
9 The first two claims are explicitly for compensatory and punitive
monetary damages and are directed toward redressing past actions. Johnson doesn’t describe this last item in sufficient detail for us to understand which interstate compact he seeks relief under.
10 While money damages could conceivably redress an ongoing
imminent danger, Johnson did not allege such facts in this case.
25 13-17.5-102.7(2). It follows that the district court did not err by
denying Johnson’s motion to proceed IFP.
VI. Disposition
¶ 45 The judgment is affirmed.
JUDGE J. JONES and JUDGE DUNN concur.