Marc Hall v. United States

44 F.4th 218

Opinion

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PUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 20-6848

MARC PIERRE HALL,

Plaintiff - Appellant,

v.

UNITED STATES OF AMERICA,

Defendant - Appellee.

Appeal from the United States District Court for the Northern District of West Virginia, at Wheeling. John Preston Bailey, District Judge. (5:20-cv-00092-JPB)

Argued: December 7, 2021 Decided: August 10, 2022

Before GREGORY, Chief Judge, RICHARDSON, Circuit Judge, and Rossie D. ALSTON, Jr., United States District Judge for the Eastern District of Virginia, sitting by designation.

Vacated and remanded by published opinion. Chief Judge Gregory wrote the opinion, in which Judge Alston joined. Judge Richardson concurred in the judgment and wrote a concurring opinion.

ARGUED: Blaec C. Croft, MCGUIREWOODS LLP, Pittsburgh, Pennsylvania, for Appellant. Erin K. Reisenweber, OFFICE OF THE UNITED STATES ATTORNEY, Martinsburg, West Virginia, for Appellee. ON BRIEF: Matthew A. Fitzgerald, MCGUIREWOODS LLP, Richmond, Virginia, for Appellant. William J. Ihlenfeld, II, United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Wheeling, West Virginia, for Appellee. USCA4 Appeal: 20-6848 Doc: 37 Filed: 08/10/2022 Pg: 2 of 41

GREGORY, Chief Judge:

Hall is an inmate at United States Penitentiary (“USP”) Hazelton who filed a pro se

civil action in United States district court alleging violations under the Federal Tort Claims

Act (“FTCA”) for denied and delayed medical care of his chronic illnesses. Hall also filed

a Motion for Leave to Proceed in forma pauperis (“IFP”). Following the Magistrate

Judge’s recommendation, the district court denied Hall’s IFP motion on the grounds that

he did not meet the “imminent danger of serious physical injury” exception. Hall now

appeals to this court.

In this case, we clarify the proper standard for considering whether a petitioner

meets the “imminent danger” exception in cases, such as here, where a petitioner is alleging

denial or delayed medical treatment resulting in worsening medical conditions and serious

physical injuries. Furthermore, we clarify that while a litigant bringing a claim under the

Prison Litigation Reform Act (“PLRA”) must show a nexus between the claims presented

and the “imminent danger” alleged, there is no redressability element required to proceed

IFP. Finally, since the district court did not have access to Hall’s medical records and,

thus, did not have a complete record to determine whether Hall satisfied the “imminent

danger” exception based on our clarified standard, we remand for further proceedings

consistent with this opinion.

I.

Marc Pierre Hall is an inmate at USP Hazelton in Bruceton Mills, West Virginia.

J.A. 1. On May 7, 2020, and pursuant to the PLRA, Hall filed a pro se civil action in U.S. USCA4 Appeal: 20-6848 Doc: 37 Filed: 08/10/2022 Pg: 3 of 41

district court alleging four separate violations of the FTCA. Hall alleges that USP Hazelton

is “actively delaying and denying him the appropriate medical treatment, resulting in an

ongoing imminent danger of serious physical injury.” Opening Br. 5 (citing J.A. 1–10).

Specifically, Hall alleges that USP Hazelton has (1) denied “pulmonary, orthopedic,

neurology, rheumatology and physiatry” services; (2) “lumbar surgery and physical

therapy”; (3) denied proper standard of care to a prisoner with a history of intubation,

asthma, and chronic obstructive pulmonary disease (“COPD”), causing a reduction in lung

capacity and lung damage; and (4) erroneously instructed an employee to use the incorrect

medical device for transporting Hall for medical care. J.A. 6–9.

Along with his federal complaint, Hall also filed a Motion for Leave to Proceed IFP.

J.A. 70. On May 12, 2020, a Magistrate Judge issued a Report and Recommendation that

Hall’s complaint should be dismissed without prejudice and that his IFP motion should also

be denied. J.A. 70–73. The Magistrate Judge noted that the PLRA, 28 U.S.C. § 1915(g),

has a “three strikes” provision that precludes a plaintiff from filing a fourth complaint unless

the litigant can meet an exception for “imminent danger of serious physical injury.” The

Magistrate Judge reasoned that because Hall had previously filed three civil complaints that

were deemed frivolous, and because Hall failed to establish that he was under “imminent

danger of serious physical injury,” the PLRA required that the district court dismiss the

complaint without prejudice. See J.A. at 70–71. Moreover, the Magistrate Judge reasoned

that even if Hall was under imminent danger, relief under the FTCA is limited to money

damages, “equitable relief is not available,” and, thus, “allowing this case to proceed without

prepayment of fees will not remove the plaintiff from ‘imminent danger of serious physical

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injury.’” J.A. 72 (citing 28 U.S.C. § 1915(g)). On May 19, 2020, Hall objected to the

Magistrate Judge’s Report and Recommendation. J.A. 75–82.

On May 29, 2020, the district court entered an order adopting the Report and

Recommendation and dismissing Hall’s complaint without prejudice. J.A. 83–88. The district

court noted that Hall’s complaint lacked “sufficient factual allegations to support a conclusion

by the Court that Hall was under imminent danger of physical injury.” Opening Br. 8 (citing

J.A. 86). On June 9, 2020, Hall filed a timely notice of appeal to this court. J.A. 91.

II.

We have jurisdiction to consider Hall’s appeal pursuant to 28 U.S.C. § 1291. We

review de novo questions of statutory interpretation. Taylor v. Grubbs, 930 F.3d 611 (4th

Cir. 2019); see also Tolbert v. Stevenson, 635 F.3d 646, 649 (4th Cir. 2011) (“We review

de novo the appropriate interpretation of § 1915(g).”). We also review de novo a district

court’s conclusion that a three-strikes litigant has not adequately alleged that he or she is

in imminent danger of serious physical injury. See Richey v. Dahne, 807 F.3d 1202, 1206

(9th Cir. 2015).

III.

A.

We begin with the “imminent danger” exception to the “three strikes provision” of

the PLRA which states in full:

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 prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility, brought an action

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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, unless the prisoner is under imminent danger of serious physical injury.

28 U.S.C.A. § 1915 (g) (emphasis added). The goal of the PLRA was to address “a concern

about the ‘endless flood of frivolous litigation’ brought by inmates.” McLean v. United

States, 566 F.3d 391, 397 (4th Cir. 2009) (quoting 141 Cong. Rec. S14, 418 (1995)),

abrogated on other grounds by Lomax v. Ortiz-Marquez, 140 S. Ct. 1721, 1724–1725

(2020) (holding that the statute’s language “applies to [dismissals] issued both with and

without prejudice to a plaintiff’s ability to reassert his claim in a later action”). With the

PLRA, Congress targeted the “flood of nonmeritorious claims,” even if such claims were

not in any way abusive, because these claims were “effectively preclud[ing] consideration

of’ suits more likely to succeed.” Jones v. Bock, 127 S. Ct. 910, 914 (2007).

“To accomplish its goal of reducing the number of frivolous lawsuits,” Congress

imposed on incarcerated persons, among other hurdles, the three-strikes limitation to

proceeding IFP. Green v. Young, 454 F.3d 405, 406–07 (4th Cir. 2006). The Supreme

Court has clarified that a claim is frivolous if and only if it “lacks an arguable basis either

in law or in fact.” Neitzke v. Williams, 109 S. Ct. 1827, 1833 (1989). We have adopted a

similar standard. See Blakely v. Wards, 738 F.3d 607, 613 (4th Cir. 2013), as amended

(Oct. 22, 2013) (holding that a “summary judgment dismissal stating on its face that the

dismissed action was frivolous, malicious, or failed to state a claim counts as a strike for

purposes of the PLRA’s three-strikes provision”); Tolbert, 635 F.3d at 651 (holding that

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“§ 1915(g) requires that a prisoner’s entire action or appeal be dismissed on enumerated

grounds in order to count as a strike”) (internal quotes omitted).

We have also clarified that “the statutory language dictates a high degree of

deference to the discretion of district courts [and, thus, a] claim can be dismissed whenever

a district court is satisfied the claim is frivolous.” Cochran v. Morris, 73 F.3d 1310, 1316

(4th Cir. 1996) (internal quotes omitted). 1 Though we clarified that “Congress vested in

courts the authority to decide whether to grant in forma pauperis status,” Blakely, 738 F.3d

at 612, we left “for another day the question of what standard should apply in determining

how such discretion should be exercised.” Id. at n.2. This is the question we answer today. 2

1 Similarly, our sister circuits have held that a frivolous action is one that is indisputably unsupportable in law or in fact. See Wilson v. Yaklich, 148 F.3d 596 (6th Cir. 1998), reh’g and suggestion for reh’g en banc denied, (July 27, 1998) and cert. denied, 119 S. Ct. 1028 (1999) (recognizing that not all meritless claims are “frivolous” and that the provisions of the PLRA should be used to dismiss an action only when the claim is “based on an indisputably meritless legal theory,” or where a complaint’s “factual contentions are clearly baseless,” that is, “when the petitioner cannot make any claim with a rational or arguable basis in law or in fact”); see also Lawler v. Marshall, 898 F.2d 1196, 1199 (6th Cir. 1990) (citing Williams v. Faulkner, 837 F.2d 304, 307 (7th Cir. 1988), aff’d by Neitzke, 109 S. Ct. at 1833 (1989)) (holding that “an in forma pauperis pro se complaint may only be dismissed as frivolous . . . when the petitioner cannot make any claim with a rational or arguable basis in law or in fact”). Other courts have held that a claim is “frivolous” under the PLRA for purposes of barring a state prisoner from proceeding IFP in a civil action, if the factual contentions supporting the claim are clearly baseless or the claim is based on a legal theory that is indisputably meritless. See Barela v. Variz, 36 F. Supp. 2d 1254 (S.D. Cal. 1999); Castro v. Samuel, 50 F. Supp. 3d 377 (E.D.N.Y. 2014) (holding the same). 2 Sister circuits have addressed this question by holding that “[i]n deciding to revoke [a litigant’s] IFP status, the Court considers ‘the number, content, frequency, and disposition of [the litigant’s] previous filings to determine if there is a pattern of abusing the IFP privilege in [the] litigation history.’” Ruston v. U.S. Secret Service, 751 F. Supp. 2d 59, 61 (D.D.C. 2010) (quoting Butler v. Dep’t of Justice, 492 F.3d 440, 446 (D.C. Cir. (Continued) 6 USCA4 Appeal: 20-6848 Doc: 37 Filed: 08/10/2022 Pg: 7 of 41

B.

In the instant matter, it is undisputed that Hall had the requisite three dismissals

required by § 1915(g). See J.A. 70–73 (citing Hall v. City of Charlotte, No. 3:97cv186

(GCM) (W.D.N.C. Aug. 29, 1997), (dismissing complaint as frivolous); Hall v. City of

Charlotte, N.C., 149 F.3d 1168 (4th Cir. 1998) (appeal dismissed as frivolous); Hall v.

United States, No. 1:00-cv-987-UNA (D.D.C. May 5, 2000) (dismissing complaint with

prejudice for failure to state a claim upon which relief may be granted); Hall v. Chater, No.

3:98cv1940 (JCH) (case dismissed as frivolous) (D. Conn. Jan. 28, 1999)). The district

court held that Hall’s complaint lacked sufficient factual allegations to support a conclusion

that Hall was under imminent danger of physical injury. J.A. 71–72; 86. Therefore, the

question before us is whether Hall showed that he was “in imminent danger of serious

physical injury,” at the time he filed his complaint, because of alleged denied or delayed

medical treatment of his chronic illnesses.

1.

We begin by clarifying what standard district courts should apply in considering

whether a petitioner faces “imminent danger of serious physical injury.” District courts

have broad discretion to consider the totality-of-the-circumstances, past and present, to

determine whether an incarcerated person faces imminent serious injury at the time of filing

because of denied or delayed medical care causing worsening medical conditions.

2007)); see also In re Sindram, 111 S. Ct. 596 (1991) (per curiam). Indeed, our court recently upheld a district court’s use of these factors. See In re Grenadier, No. 1:18-MC- 10-HEH, 2018 WL 3233648, at *9 (E.D. Va. July 2, 2018), aff’d, 753 F. App’x 178 (4th Cir. 2019). 7 USCA4 Appeal: 20-6848 Doc: 37 Filed: 08/10/2022 Pg: 8 of 41

The statute states that “[i]n no event shall a prisoner bring a civil action or appeal

. . . unless the prisoner is under imminent danger of serious physical injury.” 28 U.S.C.

§ 1915(g) (emphasis added). Here, the words “in no event” prohibit an incarcerated person

from filing a complaint or appeal if they have already had three cases dismissed “on

grounds that it is frivolous, malicious, or fails to state a claim.” 28 U.S.C. § 1915(g). Thus,

the words “in no event” are an absolute bar to filing suits under the PLRA. However, the

language “unless he is in imminent danger of serious physical injury” is an exception to

this prohibitive bar. So, the exception is triggered only if the incarcerated person alleges

sufficient and specific facts establishing that he or she is in imminent danger of serious

physical injury at the time of filing. See Johnson v. Warner, 200 F. App’x 270, 272 (4th

Cir. 2006) (quoting Martin v. Shelton, 319 F.3d 1048, 1050 (8th Cir. 2003)) (holding that

“vague, speculative, or conclusory allegations are insufficient to invoke the exception of

§ 1915(g); rather, the inmate must make ‘specific fact allegations of ongoing serious

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

physical injury’”). 3

The plain reading of the statute requires that the “imminent danger” exist

contemporaneously when the action is filed. See Negonsott v. Samuels, 113 S. Ct. 1119,

3 In Johnson, for example, we found that the litigant satisfied the requirements for the exception because his complaint detailed “unprovoked assaults and resulting serious physical injuries” from 1999 to 2005. Johnson, 200 F. App’x at 272. Johnson alleged that he was threatened with “severe bodily injury or death upon his entry into ‘supermax,’” and that he lived in “an atmosphere of constant fear in which he never kn[ew] when the next violent assault may occur.” Id. Johnson suggests that a court may consider past and ongoing acts of violence that place an incarcerated person in imminent danger. 8 USCA4 Appeal: 20-6848 Doc: 37 Filed: 08/10/2022 Pg: 9 of 41

1122–23 (1993) (“Our task is to give effect to the will of Congress, and where its will has

been expressed in reasonably plain terms, that language must ordinarily be regarded as

conclusive.”) (quoting Griffin v. Oceanic Contractors, Inc., 102 S. Ct. 3245, 3250 (1982)).

That is, someone whose danger has passed cannot reasonably be described as someone

who “is” in “imminent” danger. Nevertheless, past danger or past threats of danger may

be considered in evaluating whether the danger is imminent at the time of filing. Still, past

allegations of danger or threats of harm on their own are insufficient to satisfy the

exception. See Chase v. O’Malley, 466 F. App’x 185, 186 (4th Cir. 2012) (per curiam)

(citing Martin, 319 F.3d at 1050) (holding that “[t]he requisite imminent danger of serious

physical injury must exist at the time the complaint [or appeal] or the risk that the conduct

complained of threatens continuing or future injury, not on whether the inmate deserves a

remedy for past misconduct”) (internal quotation marks omitted).

We have also clarified that if there is a pattern of past conduct that places an

incarcerated person in imminent danger of harm, and which is ongoing, then the litigant

meets the exception. In Newkirk v. Kiser, for example, we reversed the district court’s

denial of Newkirk’s IFP because he had adequately described a pattern “that prison staff

members regularly assault inmates without cause and threaten inmates who complain” and

detailed how prison staff members had assaulted him. Newkirk, 812 F. App’x 159, 160

(4th Cir. 2020), cert. denied, 141 S. Ct. 1087 (2021). The Newkirk court held that “a

prisoner who alleges that prison officials continue with a practice that has injured him or

others similarly situated in the past will satisfy the ‘ongoing danger’ standard and meet the

imminence prong of the three-strikes exception.” Id. at 160 (emphasis added). Thus,

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Newkirk established “‘a pattern of misconduct evidencing the likelihood of imminent

serious physical injury.’” Id. (quoting Martin, 319 F.3d at 1050). The Newkirk court also

clarified that “‘[t]he exception focuses on the risk that the conduct complained of threatens

continuing or future injury, not on whether the inmate deserves a remedy for past

misconduct.’” Id. (emphasis added) (quoting Martin, 319 F.3d at 1050); see also Andrews

v. Cervantes, 493 F.3d 1047, 1056–57 (9th Cir. 2007) (holding that “a prisoner who alleges

that prison officials continue with a practice that has injured him or others similarly situated

in the past will satisfy the ‘ongoing danger’ standard and meet the imminence prong of the

three-strikes exception”). 4

In all, district courts have broad discretion to consider all the factual allegations,

whether past or present, which support finding that the petitioner is in “imminent danger”

at the time of their filing. See Newkirk, 812 F. App’x at 159 (emphasis added) (quoting

Martin v. Shelton, 319 F.3d 1048, 1050 (8th Cir. 2003) (clarifying that to satisfy the

4 Our reading that the “imminent danger” must exist at the time of filing is consistent with the DC, Third, Fifth, Eighth, and Eleventh Circuits. See e.g., Pinson v. United States Dep’t of Just., 964 F.3d 65, 69 (D.C. Cir. 2020) (“[P]risoner-litigants must show that they faced imminent danger when they noticed their appeals.”); Abdul-Akbar v. McKelvie, 239 F.3d 307, 313 (3d Cir. 2001) (“[T]he exception is cast in the present tense, not in the past tense, and the word ‘is’ in the exception refers back to the same point in time as the first clause, i.e., the time of filing. The statute contemplates that the ‘imminent danger’ will exist contemporaneously with the bringing of the action.”); see also Banos v. O’Guin, 144 F.3d 883, 885 (5th Cir.1998) (“[T]he language of § 1915(g), by using the present tense, clearly refers to the time when the action or appeal is filed or the motion for IFP status is made.”); Martin v. Shelton, 319 F.3d 1048, 1050 (8th Cir. 2003) (holding that “[t]he exception focuses on the risk that the conduct complained of threatens continuing or future injury, not on whether the inmate deserves a remedy for past misconduct”); Medberry v. Butler, 185 F.3d 1189, 1193 (11th Cir. 1999) (“Congress’ use of the present tense in § 1915(g) confirms that a prisoner’s allegation that he faced imminent danger sometime in the past is an insufficient basis to allow him to proceed in forma pauperis . . . .”). 10 USCA4 Appeal: 20-6848 Doc: 37 Filed: 08/10/2022 Pg: 11 of 41

imminent danger criterion, a prisoner must show that the danger “‘exist[ed] at the time the

complaint or the appeal [wa]s filed, not when the alleged wrongdoing occurred.’”); Meyers

v. Comm’r of Soc. Sec. Admin., 801 F. App’x 90, 95 (4th Cir. Jan. 28, 2020) (emphasis

added) (quoting BLACK’S LAW DICTIONARY (11th ed. 2019)) (clarifying that

“‘imminent’ means ‘threatening to occur immediately; dangerously impending’ or

‘[a]bout to take place’”); Meyers, 801 F. App’x. at 96 (“Thus, Congress intended that a

three-strikes prisoner have opportunity to ask the court for its aid in addressing a danger

that is close at hand, not a past infraction.”). 5

2.

Next, we turn to consider whether an incarcerated person’s allegations that prison

officials have denied or delayed his or her medical treatment resulting in worsening

medical conditions are sufficient to constitute an “imminent danger of future serious

physical injury.” While we do not set a bright line rule, we outline some parameters.

On one end of the spectrum, we have previously held that there is no “imminent

danger to serious physical injury” when prison officials deny medication to an incarcerated

5 While Congress did not define “serious physical injury,” Merriam-Webster's Dictionary of Law defines “injury” as:

an act that wrongs or harms another specifically: a violation of a legally protected interest (as the physical or mental well-being, property, reputation, or rights of another) for which the law allows an action for legal or equitable relief;

hurt, damage, or loss sustained

Merriam-Webster’s Dictionary of Law, Injury, Merriam-Webster.com, https://www.merriam-webster.com/dictionary/injury (last visited Feb. 18, 2022). 11 USCA4 Appeal: 20-6848 Doc: 37 Filed: 08/10/2022 Pg: 12 of 41

person who failed to demonstrate that the medication was necessary. See Richardson v.

Hite, 53 F. App’x 291, 292 (4th Cir. 2002) (finding no “imminent danger” in allegation

that inmate was being denied medication for his elevated cholesterol levels where inmate

did not demonstrate that his cholesterol levels were necessarily dangerous or that

medication was a medical necessity); see also Gresham v. Meden, 938 F.3d 847, 850 (6th

Cir. 2019) (explaining that temporary conditions that cause discomfort and pain and are

unlikely to “lead to impending death or other severe bodily harms” do not satisfy the

imminent-danger exception). Thus, to show that the threat or danger of serious physical

injury is imminent, a petitioner must at least allege that the medical treatment is necessary

for their medical condition(s).

On the other end of the spectrum, a petitioner is in “imminent danger of serous

physical injury” when he or she is delayed or denied treatment resulting in life-threatening

medical issues or serious injuries. Our sister circuits have held similarly. 6

Today we are faced with a thorny question of whether the denial and/or delay of

medical treatment, which allegedly causes worsening, and possibly life-altering, serious

6 See, e.g., Brown v. Wolf, 705 F. App’x 63, 66 (3d Cir. 2017) (holding that plaintiff’s allegations “that he has been denied information to allow him to make an informed decision, coupled with his allegations of serious medical issues [stemming from prostate cancer], facially show that he was at imminent risk of serious physical injury at the time he filed the complaint”); Andrews v. Cervantes, 493 F.3d 1047, 1056-57 (9th Cir. 2007) (holding that the prison’s ongoing practice of placing Andrews amongst enemy inmates with serious contagious diseases, which had resulted in Andrews being infected with tuberculosis, satisfied the imminent danger standard); Brown v. Johnson, 387 F.3d 1344, 1350 (11th Cir. 2004) (overturning the district court’s denial of IFP status to an inmate who claimed the prison officials had fully withdrawn HIV and Hepatitis treatment, causing the rapid deterioration of his condition and severe ongoing complications). 12 USCA4 Appeal: 20-6848 Doc: 37 Filed: 08/10/2022 Pg: 13 of 41

injuries is sufficient to trigger the exception. Here, the Sixth Circuit’s reasoning articulated

in Vandiver is most instructive. Vandiver v. Prison Health Servs., Inc., 727 F.3d 580, 588

(6th Cir. 2013) (holding that an incarcerated person who had been diagnosed with diabetes

and Hepatitis C, and previously been partially amputated, satisfied the exception because

he made detailed allegations showing a present danger of serious injury which included

further partial amputations, coma and death caused by a failure to receive necessary

treatment). In Vandiver, the Sixth Circuit rejected the notion that:

The inclusion of the word ‘imminent’ in § 1915(g) allows us to grant IFP status only after a plaintiff’s condition has deteriorated such that the next instance of maltreatment would result in a serious physical injury. Imposing such a restriction would ignore the progressive and worsening nature of injuries often associated with chronic illness and would result in unnecessary suffering by those afflicted with these conditions. We thus believe that for the purposes of § 1915(g), an individual afflicted with a chronic illness that left untreated would result in serious injury faces imminent danger when the illness is left untreated.

Vandiver, 727 F.3d at 587 (emphasis added). Thus, delayed or denied medical treatment

that worsens a petitioner’s medical conditions resulting in serious physical injuries would

be sufficient to trigger the exception. Indeed, the PLRA does not require that the litigant

show that he or she is facing life-threatening injuries at the time of filing. Rather, the PLRA

only requires that the litigant show that he or she is facing “an imminent danger of a

‘serious physical injury’ to him.” Ryan v. G. Robert Cotton Corr. Facility, No. 20-1305,

2020 WL 9258300, at *3 (6th Cir. Dec. 8, 2020) (quoting 28 U.S.C. § 1915(g)) (emphasis

added); see also Gresham v. Meden, 938 F.3d 847, 850 (6th Cir. 2019) (“A physical injury

is ‘serious’ for purposes of § 1915(g) if it has potentially dangerous consequences such as

death or severe bodily harm.” (emphasis added)). Thus, if an incarcerated person

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sufficiently alleges that he or she has been continually denied necessary medical care which

has worsened their chronic conditions and, as a result, they are experiencing serious

physical injuries, or severe bodily harm, then a district court need not wait until the

petitioner is facing immediate life-threatening injuries to allow him or her to proceed IFP.

See, e.g., Smith v. Ray, 590 F. App’x 232 (4th Cir. 2015) (holding that a petitioner who

“alleged that he is suffering from chest pain and heart palpitations, and has been coughing

up blood on a daily basis since December 2013 [, and] further asserted that prison officials

have refused to treat him for these issues despite his complaints[,…] support a conclusion

that Smith is under imminent danger of serious physical injury”). Though a petitioner who

alleges past and ongoing denied or delayed medical treatment may not have documented

serious physical injuries, because prison officials have refused to provide the requisite

medical care, the district court may exercise its discretion to determine whether there are

sufficient factual allegations and evidence of severe physical harm or injury, or a risk of

such harm is imminent because of worsening chronic conditions. See, e.g., Ryan, 2020

WL 9258300, at *2 (holding that an inmate who was refused medical treatment of his other

chronic conditions because only urgent or emergency appointments were being taken still

triggered the exception). To be sure, a district court is also within its discretion to dismiss

allegations of imminent harm or injury because of delayed or denied medical care if such

allegations are wholly conclusory and lack some basis in the record or complaint.

3.

In the case at bar, Hall alleges that the ongoing denial and delay of medical treatment

has continued to impact his health, resulting in the danger of physical harm. J.A. 69. Hall

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points to his medical records which indicate that his chronic conditions appear to be

worsening and may be life-altering. For example, he notes that though his injuries are not

yet imminently life-threatening, he has experienced an ongoing loss in lung capacity,

limited mobility, and has a possibly cancerous nodule in his lungs that may be increasing

in size. J.A. 13–16. Specifically, Hall alleges that the Government has failed to provide

the requisite standard of care to treat him for chronic asthma and COPD, associated with a

reduction in lung capacity, along with a material delay in providing care enabling him to

have lumbar surgery, resulting in a continuation of these injuries and increasing the risk of

imminent danger of serious physical injury. J.A. at 6–8, 11–15. In support of his claim,

Hall alleges that he is suffering from:

numerous chronic conditions, e.g.: (1) chronic persistent asthma; (2) chronic COPD; (3) lung capacity depletion to 49% without medication and between 58% to 65% capacity response with medicines; (4) history of intubation; (5) a 7mm solitary pulmonary nodule without testing and possibly cancerous- right lower lung; (6) bronchial wall thickening; (7) lung scaring at bases; (8) chronic rheumatory arthritis; (9) muscle deterioration in low back and hips; (10) ligament damage right knee meniscus tears; (11) right knee loss of rom- 8%; (12) gait; (13) chronic lumber spondylosis and stenosis; (14) degenerative disc disease; (15) spinal nerve partial compression; (16) right leg bone edema; (18) high blood pressure; (19) poor heart voltage; requiring access to outside services not available at USP Hazelton; WV. For consults of: pulmonary, rheumatology; neurology; physiatry; orthopedic; cardiology; and physical therapy.

J.A. 11–12. Hall then alleges that although he was originally seen by Dr. Adams for an

initial visit on May 17, 2018, he did not receive additional medical appointments. J.A. 12.

In combination with the understaffing at USP Hazelton, Hall alleges there have been

“repeated appointment cancelations for years that effectively denied medical rights,

causing worsening physical conditions.” J.A. 12. Specifically, Hall alleges that he has

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experienced a “worsening physical condition of [his] lungs” and that his “medical records

have been falsified by medical staff . . . that have caused Hall not to be properly examined

. . . and caused worsening physical injuries.” J.A. 12.

In his affidavit for administrative proceedings within the U.S. Department of Justice

Bureau of Prisons (“BOP”), Hall declared that the denial of medical treatment resulted in

the following worsening medical issues:

1) Worsening conditions of persistent asthma and COPD;

2) Worsening conditions of SOB (shortness of breath);

3) Worsening lung capacity;

4) Right Lung 7mm nodule growth;

5) Worsening nerve injuries either compress or in part; stretched or

displaced persistent chronic pain;

6) Worsening and deteriorating lumbar disc L4, L5, Si stenosis and

persistent chronic pain;

7) Worsening loss of muscles low back and persistent chronic pain;

8) Worsening persistent chronic scadic (sic) nerve pain;

9) Worsening persistent weakness and numbness of hands; legs and

feet;

10) Worsening degenerative disc stenosis and persistent chronic pain;

11) Worsening chronic persistent pain of neck and shoulders and

weakness;

12) Worsening and persistent chronic pain of herniated disc;

16 USCA4 Appeal: 20-6848 Doc: 37 Filed: 08/10/2022 Pg: 17 of 41

13) Worsening and limited ambulation and balance and more frequent

falls;

14) Worsening bed mobility and persistent chronic pain;

15) Worsening continence control of bowel and urine;

16) Worsening migraines persistent chronic pain up to a week;

17) Worsening erection dysfunction;

18) Loss of life activities or worsening limitations of sports;

19) Worsening arthritis and persistent chronic pain in all joints;

20) Worsening meniscus tears right knee with persistent chronic pain;

21) Worsening deterioration of hip muscles and arthritis and persistent

chronic pain;

22) Bone edema right leg persistent chronic pain;

23) Worsening reduced sight blurriness and sensitivity to light and

persistent pain;

24) Worsening heart voltage and persistent pain;

25) Worsening gait and persistent chronic pain;

26) Worsening chronic allegories contributing to respiratory diseases

and facial pain;

27) Worsening persistent chronic pain in soles of feet;

28) Worsening persistent chronic pain in legs, shooting pain;

29) Worsening persistent chronic pain in arms;

30) Worsening persistent chronic pain in groin and waist;

17 USCA4 Appeal: 20-6848 Doc: 37 Filed: 08/10/2022 Pg: 18 of 41

31) Depletion of life span.

J.A. 65–67.

In response, the Government argues that Hall failed to plead sufficient specific facts

to establish that he was in imminent danger because of an alleged lack of medical treatment.

Both the Magistrate Judge, J.A. 70–73, and district court agreed, J.A. 86.

Again, we clarify that there would be an “imminent danger to serious physical

harm” in cases where there is “incremental harm that culminates in a serious physical injury

[that] present[s] a danger equal to harm that results from an injury that occurs all at once.”

Vandiver, 727 F.3d at 587. That is, in cases where a petitioner alleges worsening medical

conditions and serious physical injury because of delayed and/or denied medical treatment,

the district court must determine whether these allegations are supported by the record and

whether they rise to the level of imminent danger, even if the alleged harm has occurred

over time and not all at once. In our case, because the district court did not have access to

Hall’s medical records, it did not have the full record to determine whether the denial and

delay of his medical treatment present an imminent danger of serious physical injury. So,

we remand for its reconsideration. 7

C.

As another ground for denial, the district court held that “plaintiff is proceeding

under the FTCA, and accordingly, relief is limited to money damages; equitable relief is

7 Although the district court did not have access to Hall’s medical records, they were filed for appellate review, and we note that they show a litany of medical issues including a possibly cancerous nodule in Hall’s lung resulting in diminished lung capacity. See Mot. II (ECF No. 5). Mot. II at 1–2, 4–7, 10–19, 21–22. 18 USCA4 Appeal: 20-6848 Doc: 37 Filed: 08/10/2022 Pg: 19 of 41

not available under the FTCA.” J.A. 87 (citing Talbert v. United States, 932 F.2d 1064,

1065–66 (4th Cir. 1991)). Therefore, the district court held that “allowing this case to

proceed without prepayment of fees will not remove the plaintiff from ‘imminent danger

of serious physical injury.’” Id.

Accordingly, the final issue is whether an applicant proceeding IFP, in conjunction

with the imminent danger of serious physical injury exception in the PLRA, must also

demonstrate that a favorable judicial outcome would redress the alleged imminent danger

of a serious physical injury to proceed. We hold that while there is a nexus requirement,

there is no redressability requirement.

The FTCA contains a general waiver of sovereign immunity. See 28 U.S.C.

§§ 1346(b), 2674 (1988). Section 1346(b) directs that “the district courts . . . shall have

exclusive jurisdiction of civil actions on claims against the United States, for money

damages . . . for injury or loss of property, or personal injury or death caused by the

negligent or wrongful act or omission of any employee of the Government . . . .” We have

clarified that “the only relief provided for in the Act is ‘money damages.’” Talbert, 932

F.2d at 1065–66 (quoting Birnbaum v. United States, 588 F.2d 319, 335 (2d Cir. 1978)).

As detailed above, Congress enacted the PLRA to deter incarcerated people from

filing frivolous lawsuits which were clogging up and burdening federal courts. See 141

Cong. Rec. S14408–01, S14413 (daily ed. Sept. 27, 1995) (statement of Sen. Dole)

(explaining that the number of prisoner suits filed “has grown astronomically—from 6,600

in 1975 to more than 39,000 in 1994”); see also id. (“The crushing burden of these frivolous

19 USCA4 Appeal: 20-6848 Doc: 37 Filed: 08/10/2022 Pg: 20 of 41

suits makes it difficult for courts to consider meritorious claims.”); 141 Cong. Rec. S7526

(daily ed. May 25, 1995) (statement of Sen. Jon Kyl) (noting that frivolous suits were

“draining precious judicial resources” and that § 1915(g) would “free up judicial resources

for claims with merit by both prisoners and nonprisoners”). Though Congress did not

prohibit an incarcerated person from filing a civil suit on any ground, Congress made it

more difficult for frequent filers to proceed with IFP status unless they met the “imminent

danger” exception. Roller v. Gunn, 107 F.3d 227, 231 (4th Cir. 1997) (clarifying that

“Congress is no more compelled to guarantee free access to federal courts than it is to

provide unlimited access to them” and reasoning that “[t]he Supreme Court has never

recognized an ‘unlimited rule that an indigent at all times and in all cases has the right to

relief without the payment of fees’”) (quoting United States v. Kras, 93 S. Ct. 631, 640

(1973)). Therefore, because Congress articulated a legitimate government interest to

prevent frivolous lawsuits and set a requirement that petitioners establish that they face

“imminent danger” to proceed as IFP status, it would make little sense to “conclude that

with one hand Congress intended to enact a statutory rule that would reduce the huge

volume of prisoner litigation, 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); see also Pinson, 964 F.3d at 71 (reasoning the same).

A plain reading of the statute requires that litigants allege sufficient specific facts to

demonstrate a nexus between the claims presented and the imminent danger alleged. See

King v. Burwell, 135 S. Ct. 2480, 2496 (2015) (“A fair reading of legislation demands a

fair understanding of the legislative plan.”). This is consistent with a general requirement

20 USCA4 Appeal: 20-6848 Doc: 37 Filed: 08/10/2022 Pg: 21 of 41

that vague and conclusory assertations are insufficient to meet the “imminent danger”

exception. See White v. Colorado, 157 F.3d 1226, 1231 (10th Cir. 1998) (clarifying that

“vague and utterly conclusory assertions” are insufficient but “credible, uncontroverted

allegations of physical threats and attacks” are sufficient). Indeed, because the “imminent

danger” exception to the PLRA was intended to be a “safety valve” to the three strikes

provision, petitioner’s must sufficiently allege a connection between the “imminent

danger” they are facing and claims in their complaint to allow the district court to grant

IFP status. See Abdul-Akbar v. McKelvie, 239 F.3d 307, 315 (3d Cir. 2001) (“By using the

term ‘imminent,’ Congress indicated that it wanted to include a safety valve for the ‘three

strikes’ rule to prevent impending harms, not those harms that had already occurred.”). 8

In our case, both parties agree that it is a “commonsense requirement that a

prisoner’s allegation of imminent danger must relate to their underlying claims.” Opening

Br. 16. Moreover, the Government concedes that “a fairly traceable relationship exists

between Hall’s alleged imminent danger and the claims set forth in his FTCA complaint,

as they both arise from his allegations of delay and denial of medical treatment.” Resp. Br.

8 District courts in our circuit routinely examine whether a petitioner’s claim is connected to the allegation that he or she is in “imminent danger” to allow the petitioner to proceed as IFP status. See, e.g., Merriweather v. Reynolds, 586 F. Supp. 2d 548, 552 (D.S.C. 2008) (holding that a litigant’s allegations of serious retaliation, continuous threats on his life, that he is in danger from prison gangs, and that prison personnel have threatened to put him in a pink jumpsuit, were insufficient, vague, and speculative to establish an imminent danger of physical harm under § 1915(g)); Feather-Gorbey v. Vest, No. 5:21- CV-00354, 2021 WL 2932738, at *2 (S.D.W. Va. July 12, 2021) (denying petitioner’s motion to proceed IFP because petitioner’s claims “allegations simply do not demonstrate a serious physical injury or a threat of serious physical injury.”); Gould v. United States, No. 3:20-CV-00167-MR, 2020 WL 4938442, at *2 (W.D.N.C. Aug. 24, 2020), appeal dismissed, No. 20-7314, 2020 WL 8679674 (4th Cir. Dec. 21, 2020). 21 USCA4 Appeal: 20-6848 Doc: 37 Filed: 08/10/2022 Pg: 22 of 41

20. Hall has passed this threshold because he alleged that the prison’s continued denial

and delay in providing medical treatment are directly causing his worsening physical and

medical conditions which present an imminent danger of serious physical injury. See

Ibrahim v. District of Columbia, 463 F.3d 3, 7 (D.C. Cir. 2006) (“Without adequate

treatment, [he] will continue to suffer additional harm, if not death,” which “surely is

sufficient to constitute imminent danger.” (internal quotation marks omitted)).

Both parties disagree, however, on whether the PLRA requires that the petitioner

show as part of the nexus requirement that the court can redress their claim(s) to proceed

as IFP status. Neither the plain language of the PLRA nor the Congressional intent point

to such a redressability requirement. Cf. Pettus v. Morgenthau, 554 F.3d 293, 298–99 (2d

Cir. 2009) (holding that “[i]n deciding whether such a nexus exists we will consider

whether the imminent danger of serious physical injury that a three-strikes litigant alleges

is fairly traceable to unlawful conduct asserted in the complaint and (2) whether a

favorable judicial outcome would redress that injury”). Because the purpose of the PLRA

is to screen out frivolous filers unless they meet the “imminent danger” exception, we do

not read an additional redressability requirement in the statute. Indeed, such a requirement

is contrary to Congressional intent and a plain reading of the statute. 9

9 Though the statute does reference to “fail[ure] to state a claim upon which relief may be granted,” § 1915 (g), this pertains to the “3 or more prior” frivolous lawsuits that the petitioner had previously filed which are used to establish the bar to filling additional suits. The language following “unless the prisoner is under imminent danger of serious physical injury [,]” § 1915 (g), does not have any qualifying language requiring the district (Continued) 22 USCA4 Appeal: 20-6848 Doc: 37 Filed: 08/10/2022 Pg: 23 of 41

In determining whether there is an “imminent danger of serious physical injury,”

the court must focus on whether the alleged injury exists at the time of filing and not on

whether the petitioner will be ultimately meritorious on the substance of their lawsuit. As

our sister circuits have acknowledged, this inquiry is a “threshold procedural question” that

does not require the district court to “make an overly detailed inquiry into whether the

allegations qualify for the exception.” Andrews, v. Cervantes, 493 F.3d 1047, 1055 (9th

Cir. 2007); see also Ciarpaglini v. Saini, 352 F.3d 328, 331 (7th Cir. 2003) (“[Section]

1915(g) is not a vehicle for determining the merits of a claim . . . . [T]o fine-tune what is

‘serious enough’ to qualify for the exception . . . would result in a complicated set of rules

about what conditions are serious enough, all for a simple statutory provision governing

when a prisoner must pay the filing fee for his claim.”). Accordingly, requiring that

litigants establish that the court can redress their alleged “imminent danger of serious

physical injury” would require examining the severity of the alleged injury and sufficiency

of the relief sought—an examination of the merits of the case.

Of course, district courts must still examine whether it can redress the injury alleged

as part of its usual Article III standing analysis. See Horne v. Flores, 129 S. Ct. 2579, 2592

(2009) (“To establish standing, a plaintiff must present an injury that is concrete,

particularized, and actual or imminent; fairly traceable to the defendant’s challenged

action; and redressable by a favorable ruling.”) (citing Lujan v. Defenders of Wildlife, 112

court to examine whether it can provide relief to cure the alleged imminent danger of serious physical injury. 23 USCA4 Appeal: 20-6848 Doc: 37 Filed: 08/10/2022 Pg: 24 of 41

S. Ct. 2130, 2130 (1992)). However, as a threshold procedural matter, the PLRA does not

require an incarcerated person to establish redressability to proceed as IFP status.

Still, the Government points out that we adopted the two-part Pettus test in Meyers,

an unpublished opinion, where we held that “the better reading of the Imminent Danger

Provision is that it requires a relationship between the imminent danger alleged in the IFP

application and the facts alleged, and relief sought in the underlying claim.” Meyers, 801

F. App’x at 95. Meyers also clarified that “the allegations of imminent danger in the IFP

application must have some nexus or relation to those of the underlying complaint.” Id. at

96. 10 While the Meyers court found support for the requirement that imminent danger

alleged must be connected to the claims in the complaint, the Meyers court did not adopt

the two-step test articulated in Pettus. Rather, the Meyers court discussed Pettus and noted

that only one other sister circuit had adopted the test in another unpublished opinion. See

Lomax v. Ortiz-Marquez, 754 F. App’x 756, 759 (10th Cir. 2018), cert. granted on other

grounds, 140 S.Ct. 428 (2019). Ultimately, the Meyers court did not adopt the two-step

Pettus test because the facts in that case did not require it to do so. Meyers, 801 F. App’x

at 96. Therefore, we are not bound to follow Meyers. 11 Because the statute does not require

10 The panel pointed to sister circuits who have held similarly. Ball v. Hummel, 577 F. App’x 96, 98 n.1 (3d Cir. 2014) (per curiam); Pettus, 554 F.3d at 297 (holding “that the statute requires that the prisoner’s complaint seeks 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”); cf. Vandiver, 727 F.3d at 588 (declining to address the issue). 11 Pursuant to our Local Rule 36(c), we do not accord precedential value to our unpublished decisions. Unpublished decisions are not binding, and they are “entitled only to the weight they generate by the persuasiveness of their reasoning.” Hupman v. Cook, 640 F.2d 497, 501 & n. 7 (4th Cir. 1981). 24 USCA4 Appeal: 20-6848 Doc: 37 Filed: 08/10/2022 Pg: 25 of 41

that the litigant show that they are likely to receive a favorable judicial outcome to proceed

under the “imminent danger of serious physical injury” exception, we need not examine

whether Hall met this element.

IV.

In all, we remand the case for further proceedings consistent with this opinion.

VACATED AND REMANDED

25 USCA4 Appeal: 20-6848 Doc: 37 Filed: 08/10/2022 Pg: 26 of 41

RICHARDSON, Circuit Judge, concurring in the judgment:

Marc Pierre Hall, an inmate at the United States Penitentiary Hazelton in West

Virginia, alleges that the United States has delayed providing and at times denied him

necessary medical treatment, endangering his life. He sued the United States under the

Federal Tort Claims Act, which permits suits against the federal government for monetary

damages, but not for injunctive relief. Hall wishes to proceed in forma pauperis (i.e.,

without paying the standard up-front filing fee). But Hall has already filed three meritless

lawsuits, so under the Prison Litigation Reform Act he may not proceed in forma pauperis

unless he is “under imminent danger of serious physical injury.” 28 U.S.C. § 1915(g). The

United States argues that Hall’s complaint fails to allege adequate facts showing that he is

in any such danger, and that even if it did, a damages suit for past misconduct cannot satisfy

the imminent-danger exception because the exception applies only when a prisoner is

seeking an injunction to remedy (or “redress”) some ongoing danger.

I agree with the majority that there is no redressability requirement for the

imminent-danger exception; no such requirement appears in the text of § 1915(g), and we

should not impose one. Yet I disagree that the imminent-danger exception is necessarily

satisfied where “the incarcerated person alleges sufficient and specific facts establishing”

an imminent danger. Maj. Op. 8. In my view, the imminent-danger exception imposes a

substantive requirement that the plaintiff actually be in danger at the initiation of the suit—

a factual question that may be informed by evidence provided by either party.

Here, Hall alleged deliberate indifference to several medical conditions. Only one

of those—the possibly cancerous growth on his lung—would constitute an imminent

26 USCA4 Appeal: 20-6848 Doc: 37 Filed: 08/10/2022 Pg: 27 of 41

danger if Hall’s allegations of nontreatment were merely accepted as true. But medical

records submitted by Hall to this court suggest that he may be receiving adequate treatment

for that nodule. So, because § 1915(g) is a substantive requirement and not a pleading

standard, I agree that the decision of the district court must be vacated, but I would remand

the case for consideration of whether record evidence reveals that imminent danger existed

at the time of filing.

I. Background

Marc Pierre Hall is a federal prisoner. Hall filed a negligence suit under the Federal

Tort Claims Act 1 and sought to proceed in forma pauperis because he could not afford the

usual up-front filing fee. He allegedly suffers from a slew of medical conditions, including

various back and spinal issues, joint problems, migraines, balance and mobility concerns,

difficulty breathing, lung damage, and a possibly cancerous nodule. Hall claims that prison

officials have contributed to the onset and worsening of many of these issues by their

“excessive delay of access to outside services.” J.A. 6. He also asserts that treating

medical staff authorized consultations with outside specialists but that those consultations

were either never scheduled or were cancelled. And he alleges an unreasonable delay in

transferring him to a medical referral center, arguing he was entitled to such transfer under

the Bureau of Prison’s policies as a prisoner with a history of intubations and lung capacity

below 50%. Further, he alleges that he was denied his annual chronic care visit but that

1 The Federal Tort Claims Act “permits the United States to be held liable in tort in the same respect as a private person would be liable under the law of the place where the act occurred.” Medina v. United States, 259 F.3d 220, 223 (4th Cir. 2001) (citing 28 U.S.C. § 1346(b)).

27 USCA4 Appeal: 20-6848 Doc: 37 Filed: 08/10/2022 Pg: 28 of 41

records were falsified to suggest that the visit had occurred. And he alleges that “a possible

cancerous 7 mm nodule was found in [his] Lower right lung with no testing or pulmonary

consult scheduled.” J.A. 12. Finally, he alleges delays and deprivations of physical therapy

related to back and knee problems.

Hall is a frequent litigant in the federal courts. He has filed dozens of lawsuits in

16 districts, with prior appeals to the Third, Fourth, Fifth, Ninth, Tenth, Eleventh, and D.C.

Circuits. So unsurprisingly, he is subject to the so-called three-strikes rule in § 1915(g). 2

But he argues that he qualifies for the exception for prisoners “under imminent danger of

serious physical injury.” § 1915(g).

The magistrate judge below concluded that the imminent-danger exception did not

apply because Hall could recover only money damages under the Federal Tort Claims Act;

thus, “allowing this case to proceed without prepayment of fees will not remove the

plaintiff from ‘imminent danger of serious physical injury.’” J.A. 72. Hall objected,

arguing that (1) the imminent-danger exception in § 1915(g) does not require that a

favorable judgment mitigate the danger; and (2) even if it did, a monetary judgment against

the government would deter future negligence. The district court rejected Hall’s objections

and adopted the magistrate’s recommendation, while also finding that “Plaintiff’s

Complaint lacks enough factual allegations for this Court to plausibly conclude that

2 “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 prisoner has, on 3 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, unless the prisoner is under imminent danger of serious physical injury.” § 1915(g).

28 USCA4 Appeal: 20-6848 Doc: 37 Filed: 08/10/2022 Pg: 29 of 41

plaintiff is under imminent danger of serious physical injury.” J.A. 86. The court thus

denied Hall leave to proceed in forma pauperis and dismissed his complaint without

prejudice. Hall timely appealed pro se. 3

In support of his appeal, Hall moved to enter his medical records. The records,

which he attached to that motion, appear to support some aspects of his allegations but

undermine others. For example, they show that Hall has a 6–8 mm nodule on his lower

right lung, COPD, 50% lung capacity, and persistent knee and back issues. However, they

also show that consultations were scheduled, although Hall’s notation on the documents

claims that these were not performed. Perhaps most relevant, the records reveal that

physicians performed a follow-up to monitor the progression of the lung nodule, which

appeared to be stable.

II. Discussion

When someone wishes to sue but cannot afford the associated filing fee, federal law

permits him to proceed in forma pauperis (in the manner of a pauper), filing the suit without

paying the fee. § 1915. But that gratuity is not unlimited. The Prison Litigation Reform

Act (“PLRA”) commands that a prisoner-plaintiff may not proceed in forma pauperis “if

the prisoner has, on 3 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

3 Because a dismissal without prejudice due to nonpayment of the filing fee cannot be cured by amendment, it is a final judgment and this court has jurisdiction. See 28 U.S.C. § 1291; Domino Sugar Corp. v. Sugar Workers Loc. Union 392, 10 F.3d 1064, 1066–67 (4th Cir. 1993).

29 USCA4 Appeal: 20-6848 Doc: 37 Filed: 08/10/2022 Pg: 30 of 41

granted.” 28 U.S.C. § 1915(g). This “three-strikes” rule seeks to reduce vexatious and

frivolous litigation by prisoners who, with little but time on their hands, have nothing to

lose and much to gain from filing free lawsuits. See Blakely v. Wards, 738 F.3d 607, 609

(4th Cir. 2013) (en banc).

All parties agree that Hall, a prolific filer of meritless lawsuits, easily falls under the

three-strikes rule. But the rule has an exception: A prisoner may sue in forma pauperis

despite three prior frivolous suits if he is “under imminent danger of serious physical

injury.” § 1915(g). This appeal asks the court to resolve two questions about that

exception. First, does the exception include an implicit “redressability” element requiring

that the suit seek injunctive relief that would mitigate the imminent danger? Second, does

Hall’s complaint adequately plead facts that, if accepted as true, establish an imminent

danger of serious physical injury?

I would hold that there is no redressability requirement (albeit for slightly different

reasons than the majority). I would also hold that that the imminent-danger requirement is

a substantive requirement, not a pleading requirement. So although Hall’s complaint may

allege an imminent danger based on the 6–8 mm nodule, those allegations may be rebutted

by contradictory evidence. Thus, I would remand for the district court to determine

whether the available evidence, including the medical records submitted by Hall, contradict

his allegation that the prison failed to monitor the progression of the nodule.

A. There is no redressability requirement

This court reviews questions of statutory interpretation de novo. Stone v.

Instrumentation Lab’y Co., 591 F.3d 239, 242–43 (4th Cir. 2009). And when interpreting

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statutes, courts begin with the text’s plain meaning. Lamie v. U.S. Tr., 540 U.S. 526, 534

(2004). In so doing, courts must presume that Congress “says in a statute what it means

and means in a statute what it says.” Conn. Nat’l Bank v. Germain, 503 U.S. 249, 253–54

(1992). Accordingly, when a statute’s text is unambiguous, the “judicial inquiry is

complete,” Rubin v. United States, 449 U.S. 424, 430 (1981), and all that remains is to give

effect to that unambiguous language.

Accordingly, I begin—and end—my analysis with the text:

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 prisoner has, on 3 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, unless the prisoner is under imminent danger of serious physical injury.

§ 1915(g) (emphasis added). The text lays out a single predicate to its three-strikes-rule

exception: The prisoner must be “under imminent danger of serious physical injury.”

§ 1915(g). That’s all. The statute imposes no requirement that the prisoner’s lawsuit be

brought to redress the danger. Nor is there any ambiguity into which one might read such

a requirement. Because the text is clear, its plain meaning controls. Thus, there is no

redressability requirement in § 1915(g).

With no textual basis for a redressability requirement, the government requests that

we read one into the statute based on its purpose. After all, they say, the last phrase in

§ 1915(g) sought to provide a narrow exception to the three-strikes rule—a “safety valve”

providing relief from the harshness of that rule only if such relief is necessary to avoid

some looming danger. By extending the exception beyond cases brought specifically to

31 USCA4 Appeal: 20-6848 Doc: 37 Filed: 08/10/2022 Pg: 32 of 41

redress an imminent danger, the government argues we risk turning that safety valve into

a floodgate of frivolous in forma pauperis damages actions.

To be fair, the government’s position finds support in some other circuits. For

instance, in Pettus v. Morgenthau, 554 F.3d 293, 297 (2d Cir. 2009), the Second Circuit

imposed exactly the redressability requirement the government seeks here, as part of a

larger “nexus” requirement between the alleged harms and the claim brought. The amicus

in support of the plaintiff in Pettus argued that, to proceed in forma pauperis under

§ 1915(g), a plaintiff-prisoner need only allege that he is in imminent danger, not that his

suit was related in any way to that danger. Id. at 296–97. The Second Circuit rejected that

position as an unsustainable hyper-literal interpretation that ignored “the exception’s place

in the overall statutory framework.” Id. at 297. In context, the court reasoned, it was clear

that the statute’s goal was to create “a safety valve for the ‘three strikes’ rule.” Id. (quoting

Malik v. McGinnis, 293 F.3d 559, 563 (2d Cir. 2002)). “Its unmistakable purpose is to

permit an indigent three-strikes prisoner to proceed [in forma pauperis] in order to obtain

a judicial remedy for an imminent danger.” Id. To allow a prisoner to bring a suit unrelated

to that danger would, in the court’s view, have amounted to Congress hiding “elephants in

mouseholes.” Id. (quoting Whitman v. Am. Trucking Ass’ns, 531 U.S. 457, 468 (2001)).

Determined to graft an extra-textual nexus requirement onto § 1915(g), the Second

Circuit was left to figure out the content of that requirement. But it lacked any statutory

guidance on the matter. So the court decided that it would simply analogize to “ordinary

standing rules,” which it assumed Congress must have had “in mind” when enacting

§ 1915(g). Id. at 297–98. In particular, the court reasoned that the second and third

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elements of the standing test laid out in Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–

61 (1992), are the necessary components of this implicit nexus requirement. Id. at 298–

99. 4 Therefore, to bring suit under the exception in the Second Circuit, a prisoner must

show: (1) that the “imminent danger of serious physical injury that a three-strikes litigant

alleges is fairly traceable to unlawful conduct asserted in the complaint,” 5 and (2) that “a

favorable judicial outcome would redress that injury.” Id. at 298–99.

The Pettus test has since caught on outside the Second Circuit. See Fourstar v.

United States, 950 F.3d 856, 859–60 (Fed. Cir. 2020); Lomax v. Ortiz-Marquez, 754 F.

App’x 756, 759 (10th Cir. 2018); Ball v. Hummel, 577 F. App’x 96, 96 n.1 (3d Cir. 2014)

(per curiam); see also Pinson v. U.S. Dep’t of Justice, 964 F.3d 65, 73 (D.C. Cir. 2020)

(adopting a nexus requirement and holding that, at a minimum, it requires redressability).

This circuit most expressly considered whether § 1915(g) contains an implicit nexus

requirement in Meyers v. Commissioner of Social Security Administration, 801 F. App’x

90, 96 (4th Cir. 2020) (per curiam). There, the plaintiff conceded that there was no nexus

between one of his claims and the alleged danger and the defendant conceded that

plaintiff’s other claim satisfied the nexus requirement. Id. The court held, in a

4 In the Second Circuit’s analysis, the first standing element, a “concrete” and “particularized” injury, is supplanted by § 1915(g)’s textual requirement of an imminent danger of serious physical injury. 5 The “fairly traceable” element of the Pettus-nexus requirement is not at issue here. See 554 F.3d at 298–99 & 299 n.1.

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nonprecedential unpublished opinion, that § 1915(g) did contain some nexus requirement,

though it declined to consider its contours given the parties’ concessions. Id. 6

As for the Second Circuit’s decision, I do not find its rationale compelling. The

Pettus test essentially changes the statutory phrase from “is under imminent danger of

serious physical injury” to “is under imminent danger of serious physical injury and is

suing in connection to that danger and is suing in such a way as to eliminate that danger.”

And the court’s justification, though artfully stated, boils down to the notion that the

imminent-danger exception’s purpose as a “safety valve” should trump its plain meaning.

But that approach runs headlong into the principle that “vague notions of a statute’s ‘basic

purpose’ are nonetheless inadequate to overcome the words of its text regarding the specific

issue under consideration.” Mertens v. Hewitt Assocs., 508 U.S. 248, 261 (1993) (emphasis

omitted). 7 When a statute expressly identifies conditions, it unambiguously includes only

6 The parties here do not challenge the holding of Meyers that some nexus is required. Both agree that § 1915(g) includes some sort of nexus requirement, and that Hall’s claims of alleged danger are fairly traceable to his FTCA claims. 7 Anyway, the purpose here may cut both ways (as is often the case). The safety- valve theory of this statutory exception may well be right but that still would not inevitably require a nexus requirement. Congress could have wanted to create an exception only for claims that would directly redress life-threatening harms. But it is easy enough to imagine Congress having another view of the policy outcomes. Congress might have (1) wanted to allow a safety valve for prisoners in danger of harm, (2) wanted judges to consider whether that harm was likely and imminent, but (3) not wanted judges to engage in any kind of complicated analysis of how the harm related to the prisoner’s claim. If it really is true that a prisoner is in imminent danger of death or serious injury, often their lawsuit will aim to avert that danger. And while Congress was concerned about frivolous litigants, once there is a risk of death, it is conceivable that Congress left the choice of what lawsuit to file in the threatened prisoner’s hands, even if he were once a vexatious litigant. As between the risk of allowing a near-death prisoner to file a few frivolous lawsuits and the risk of (Continued)

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those requirements. See Julmice v. Garland, 29 F.4th 206, 208 (4th Cir. 2022). And here,

the only condition established by Congress is an imminent danger of serious physical

injury. It is not the role of courts to add requirements that Congress could have included

but for whatever reason did not. 8 See Bates v. United States, 522 U.S. 23, 29 (1997).

By asking this Court to incorporate a nexus requirement with its redressability

element into § 1915(g), the government invites us to recreate the imminent-danger

exception in a manner it perceives is more reasonable. Because § 1915(g)’s plain language

unambiguously omits such a requirement, I cannot accept that invitation. And as to the

government’s floodgates concern—that a three-strikes prisoner might gain unfettered

access to federal court by pleading some conclusory imminent danger—that problem

appears to be one of the courts’ own making, a byproduct of erroneously treating § 1915(g)

as a mere pleading standard. But as I will next explain, this floodgates concern isn’t a real

concern at all because the imminent-danger exception of § 1915(g) is not a pleading

standard but a substantive requirement that a prisoner actually be in imminent danger.

allowing a mistake in a judge’s standing analysis to deny a near-death prisoner his day in court, Congress might err on the side of a few more lawsuits. 8 If the government believes that Congress meant to include such a redressability element in § 1915(g), the proper course is to bring the issue to Congress’s attention so that it might amend the statute. To that end, I would support directing the Clerk of Court to send a copy of these opinions to Congress as part of the Statutory Opinion Transmission Project, so that it might consider resolving this budding circuit split. See generally Marin K. Levy & Tejas N. Narechania, Interbranch Information Sharing: Examining the Statutory Opinion Transmission Project, 108 Calif. L. Rev. 917 (2020).

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B. The imminent-danger exception is not a mere pleading requirement

I now turn to the district court’s alternative basis for denying Hall in forma pauperis

status: failure to set forth facts reflecting an imminent danger of serious physical injury.

In order to meet this threshold, Hall must have identified a danger that is (1) imminent (i.e.,

“Near at hand; . . . impending”); (2) serious (i.e., “grave, great”); and (3) of physical injury

(i.e., resulting in “[b]odily harm or hurt”). See Imminent, Serious, Physical Injury, Black’s

Law Dictionary (6th ed. 1990).

The imminent-danger exception of § 1915(g) is not a mere pleading requirement.

In other words, to file in forma pauperis, it is not enough that the complaint merely alleges

that the plaintiff is in imminent danger of serious physical injury. Rather, the plaintiff must

actually be in imminent danger of serious physical injury. This is because § 1915(g)’s text

does not impose a pleading standard but a substantive requirement: A prisoner may file in

forma pauperis only if he “is under imminent danger of serious physical injury.” § 1915(g)

(emphasis added). “Is,” not “alleges he is.” The word “is” demands actual being. For

example, consider the diversity-jurisdiction statute restricting a federal court’s power to a

suit that “is between . . . citizens of different States.” 28 U.S.C. § 1332. A federal court

does not have diversity jurisdiction over an action merely because the plaintiff alleges the

suit is diverse. Jurisdiction depends on the litigants’ actual status as citizens of different

states, not their pleadings. See Sligh v. Doe, 596 F.2d 1169, 1170 (4th Cir. 1979).

Likewise, the plain language enacted by Congress in § 1915(g) tests the litigant’s status,

not the litigant’s pleadings: When the suit is initiated, is he in imminent danger of serious

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physical injury? If he is—and only if he actually is—he may bring suit despite his three-

strike status.

In my view, an action should only be docketed in forma pauperis under the

imminent-danger exception if the prisoner demonstrates that the purported danger exists.

While the necessary evidence will vary case-to-case, 9 perhaps an affidavit (or its

equivalent) may suffice at first. But even if the litigant makes the required initial showing,

it could still be rebutted by later-presented contradictory evidence, resulting in the

revocation of in forma pauperis status. See, e.g., Holley v. Meredith, No. 7:18-cv-00535,

2022 WL 329204, at *1 (W.D. Va. Feb. 3, 2022) (granting defendant’s motion to revoke

plaintiff’s in forma pauperis status as improperly granted because the plaintiff had three

strikes under § 1915(g)). 10

I recognize that some courts have treated § 1915(g) as a pleading standard, not a

substantive requirement. See Vandiver v. Prison Health Servs., Inc., 727 F.3d 580, 585

(6th Cir. 2013); Pettus, 554 F.3d at 297; Ciarpaglini v. Saini, 352 F.3d 328, 330 (7th Cir.

2003); Martin v. Shelton, 319 F.3d 1048, 1050 (8th Cir. 2003). Indeed, our circuit has

9 Medical dangers could be proven with medical records, but dangers from other inmates—perhaps involving death threats—might be proven with prison security records. As with any contested issue of fact, there could be many kinds of relevant evidence. 10 It is an open question in this circuit whether, after revoking in forma pauperis status, the court should (1) give the plaintiff an opportunity to tender the filing fee, or (2) automatically dismiss the case without providing such an opportunity. See id. at *4. District courts often follow the Eleventh Circuit’s rule from Dupree v. Palmer, 284 F.3d 1234, 1236 (11th Cir. 2002), holding that denial of a request to proceed in forma pauperis should result in the automatic dismissal of the suit without prejudice since the filing fee is due at the start of a lawsuit. See Holley, 2022 WL 329204, at *4 (collecting cases).

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treated it as a pleading requirement in unpublished decisions. See Meyers, 801 F. App’x

at 95; Newkirk v. Kiser, 812 F. App’x 159 (4th Cir. 2020) (per curiam); Johnson v. Warner,

200 F. App’x 270, 272 (4th Cir. 2006) (per curiam). But the courts that have treated it as

a pleading standard have seldom explained their reason for doing so. Instead, they simply

throw out a conclusory statement that an allegation is all that’s required, then move along.

See, e.g., Vandiver v. Vasbinder, 416 F. App’x 560, 562–63 (6th Cir. 2011) (faulting the

district court for requiring a “showing” of imminent danger because an allegation was “all

that is required” for § 1915(g)); Ciarpaglini, 352 F.3d at 330 (treating § 1915(g) as a

pleading standard without explaining why). And while this court may look to other circuits

for their wisdom and guidance, our obligation is to correctly interpret the statute’s text, not

to blindly follow the prevailing interpretive trend.

As discussed above, these courts’ interpretation of § 1915(g)—that it is merely a

pleading standard—deviates from the text’s plain meaning. Just as courts may not alter

the language of the statute to create new barriers for litigants, so too they may not alter the

language to remove a hurdle that Congress imposed. Furthermore, treating the provision

as an easily surmounted pleading requirement undermines the idea (often advanced by

those very same courts) that it is meant to be a narrow “safety valve.” By requiring only

an allegation, rather than actual danger, § 1915(g) is reduced to a magic-words

requirement, where a plaintiff can repeatedly allege a fabricated imminent danger without

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ever having to prove it. 11 If, instead, the exception applies only in the rare case in which a

prisoner is actually in serious danger, it would serve exactly that sort of break-glass

emergency role without swallowing up the three-strikes rule altogether.

This case serves as an excellent example of why the imminent-danger exception is

a substantive requirement, not a pleading standard. Most of Hall’s asserted dangers, even

if true, fail to qualify as imminent dangers of serious physical injury. For instance, the

failure to schedule appointments for chronic back pain or the failure to put Hall into

specialized housing for his breathing problems do not give rise to an imminent danger of

serious physical injury absent facts tending to show that the requested treatment is

medically necessary and that failing to provide it creates a serious danger. See Richardson

v. Hite, 53 F. App’x 291, 292 (4th Cir. 2002) (per curiam) (finding no imminent danger

where prison did not provide prisoner with cholesterol medication and the prisoner “failed

to demonstrate his elevated cholesterol levels were necessarily dangerous or that

medication was a medical necessity”); Gresham v. Meden, 938 F.3d 847, 850 (6th Cir.

2019) (finding no imminent danger where prison improperly gave the prisoner

antipsychotic medication, causing “[c]hest pains, muscular restlessness, seizures,

vomiting, stomach cramps, and dizziness,” because those symptoms are “rarely life-

threatening”). But one allegation stands out as potentially adequate: that there is an

unmonitored 7 mm nodule in Hall’s lung that might be cancerous. Failing to monitor a

11 The three-strikes rule is aimed at prisoners who have consistently cried wolf by bringing frivolous lawsuits. To allow those same prisoners to avoid the consequences of their frivolous litigation by promising that this time things are really serious—that this time the wolf is real—would defy logic and experience.

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nodule that may be a serious and progressive disease may constitute an imminent danger

of serious physical injury under appropriate circumstances, because it may kill him soon,

or it may worsen soon such that it seriously decreases his odds of survival. See Smith v.

Wang, 370 F. App’x 377, 378 (4th Cir. 2010) (per curiam); McAlphin v. Toney, 281 F.3d

709, 711 (8th Cir. 2002) (holding that a spreading infection fits the bill).

If § 1915(g) imposed only a pleading requirement, then Hall’s mere assertion that

the prison failed to provide proper follow-up screenings would be enough for him to get in

forma pauperis status, regardless if this actually were the case. And if that were so, we

might reasonably be concerned about prisoners’ ability to evade the three-strikes rule via

fabricated allegations. But because § 1915(g) imposes a substantive requirement, the court

may look beyond Hall’s complaint and in forma pauperis application to determine whether

the prison is truly denying him medically-necessary cancer screenings.

Here, Hall’s medical records, which he submitted to this court, appear to contradict

his allegations by showing that follow-up testing was performed. 12 I would therefore

instruct that on remand the district court should carefully examine the records Hall has

provided, along with other relevant records, and determine whether the record as a whole

shows that he is under imminent danger of serious physical injury.

12 Whether the medical records support or contradict Hall’s alleged danger was not an issue that was substantially briefed by the parties on appeal. So I take no position on whether, in fact, they show the existence of an imminent danger of serious physical injury. I would leave that question to be answered by the district court on remand.

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* * *

Congress created an exception from the three-strike rule for any prisoner who is

“under imminent danger of serious physical injury.” § 1915(g). That language requires

actual (not just alleged) danger. But it does not require that the danger be redressed by the

relief sought. As judges, we are bound to implement the laws that Congress enacts. See

EPA v. EME Homer City Generation, L.P., 572 U.S. 489, 508–09 (2014) (observing that a

court’s “task is to apply the text [of the statute], not to improve upon it” (alteration in

original) (quoting Pavelic & LeFlore v. Marvel Ent. Grp., 493 U.S. 120, 126 (1989))). So

I would vacate the district court’s order and remand with instructions for it to consider

whether, based on the medical records Hall has produced and other available evidence,

Hall was indeed in imminent danger of serious physical injury when he filed suit.