17‐2261 Shepherd v. Comm’r Annucci
United States Court of Appeals for the Second Circuit
AUGUST TERM 2018
No. 17‐2261
EON SHEPHERD, Plaintiff‐Appellant,
v.
COMMISSIONER ANNUCCI, SUPERINTENDENT ROCK, SUPERINTENDENT SHEAHAN, SUPERINTENDENT LA VALLEY, SUPERINTENDENT PEREZ, SUPERINTENDENT SMITH, DSS MALLY, DSP ANDREWS, DSP LIRA, DSP JONES, CAPTAIN CALEVERIE, CHERYL MORRIS, DR. KOENIGSMANN, DR. LEE, DR. TRABOUT, DR. HAIMES, NA BAINSTER, NA JANSEN, NP SALOTI, DSP JONES, CORRECTIONAL OFFICER MANDIGO, RN TUNG NGYER, DEACON BASHAW, CORRECTIONAL OFFICER HUSCH, SERGEANT TUCKER, SERGEANT WILKIE, CORRECTIONAL OFFICER EKWEREKWU, DIRECTOR OF CLASSIFICATION AND MOVEMENT FOR THE NEW YORK STATE DEPARTMENT OF CORRECTIONS AND COMMUNITY SUPERVISION, DEPARTMENT OF CORRECTIONS AND COMMUNITY SUPERVISION,
Defendants‐Appellees,
JANE/JOHN DOES, ET AL.,
Defendants.
On Appeal from the United States District Court
for the Western District of New York
SUBMITTED: DECEMBER 3, 2018 DECIDED: APRIL 15, 2019
Before: CABRANES, DRONEY, SULLIVAN, Circuit Judges.
Appeal from a judgment of the United States District Court for the Western District of New York (Larimer, J.), dismissing Plaintiff‐Appellant’s complaint with prejudice as a sanction for misrepresenting his litigation history. Plaintiff‐ Appellant argues that the district court abused its discretion by dismissing his complaint as a sanction, and that the district court erred by considering materials outside the complaint when evaluating whether he qualified for the “imminent‐ danger” exception to the Prison Litigation Reform Act’s “three‐strikes” rule. We hold that a district court may conduct a limited evidentiary inquiry into a litigant’s assertion of imminent danger. Because we find no abuse of discretion in the district court’s dismissal of this case as a sanction, we affirm.
Michael Starr and Sheila (Qian) Shen, Holland & Knight LLP, New York, NY for Plaintiff‐Appellant.
Andrea Oser, Deputy Solicitor General, and Kate H. Nepveu, Assistant Solicitor General, for Barbara Underwood, Attorney General, State of New York, for Defendants‐ Appellees.
RICHARD J. SULLIVAN, Circuit Judge:
Plaintiff‐Appellant Eon Shepherd appeals from the judgment of the United
States District Court for the Western District of New York (Larimer, J.), which
dismissed his pro se complaint with prejudice as a sanction for misrepresenting his
litigation history. The district court also determined that Shepherd was barred
from proceeding in forma pauperis because he had accumulated three strikes under
28 U.S.C. § 1915(g), and was not in “imminent danger of serious physical injury,”
id. On appeal, Shepherd argues that the district court abused its discretion by
dismissing his complaint as a sanction. Shepherd also argues that the district court
erred by considering materials outside the complaint when evaluating whether he
qualified for the imminent‐danger exception to the three‐strikes bar. We conclude
that district courts may conduct limited inquiries into whether a litigant’s fear of
imminent danger under Section 1915(g) is plausible. Moreover, because we find
no abuse of discretion in the district court’s dismissal of this case as a sanction, we
AFFIRM.
I. BACKGROUND
Plaintiff‐Appellant Eon Shepherd is an inmate at Five Points Correctional
Facility (“Five Points”) in Romulus, New York. On June 1, 2015, Shepherd filed
suit in the Southern District of New York against the New York Department of
Corrections and Community Supervision, 28 named defendants, and various John
and Jane Does (collectively, “Defendants”), setting forth 33 causes of actions under
various federal statutes. Shepherd also filed a request to proceed in forma pauperis 3
(IFP) – a status which allows a prisoner‐litigant to file a lawsuit without pre‐paying
the full filing fees. See 28 U.S.C. § 1915(a)(1). However, under what is known as
the “three‐strikes” provision, an incarcerated prisoner is prohibited from
proceeding IFP if he has commenced three prior lawsuits that have been dismissed
outright. See id. § 1915(g). In his complaint, Shepherd stated that he had filed
seven1 lawsuits previously, but asserted that none qualified as strikes.
As to his conditions of confinement, Shepherd alleged the staff at Five Points
failed to accommodate his disability – severe back pain and spasms that prevented
him from walking long distances – by refusing to house him close to the clinic, the
package room and the visiting area, although he conceded that the staff did place
him close to the law library, religious services, and the gym. Shepherd also
claimed that the medical staff refused to provide him treatment for his back pain
and other maladies. Finally, Shepherd asserted that he was placed on medical
“keeplock” (i.e., bed rest) against his wishes, and that this caused him further pain
and muscle atrophy.
The Southern District of New York (Preska, J.) initially granted Shepherd’s
application to proceed IFP. However, one month later, Judge Preska sua sponte
1 While Shepherd’s original complaint listed eight “previous” lawsuits, it indicated that one of
the listed lawsuits was still pending. 4
issued an order to show cause why Shepherd’s IFP status should not be revoked,
citing three prior IFP cases that Shepherd had brought, all of which qualified as
“strikes” and would ordinarily bar Shepherd from proceeding IFP. See 28 U.S.C.
§ 1915(g). Shepherd responded, arguing that his IFP status should not be revoked
because he was in “imminent danger of serious physical injury,” which is an
exception to the three‐strikes rule. See id. The case was subsequently transferred
to the Western District of New York (Arcara, J.),2 which found that Shepherd could
proceed IFP, as the complaint and his response to the order to show cause
provisionally demonstrated that he was in imminent danger of serious physical
injury.
After being served, Defendants moved to dismiss the complaint pursuant to
the “inherent authority of the Court,” arguing that Shepherd materially misled the
court by deliberately omitting from the complaint his prior “strikes.” Defendants
noted that Shepherd had previously filed ten federal lawsuits – not seven, as he
indicated in his complaint – and that the only cases he omitted were all cases that
would qualify as “strikes.” Defendants also moved to revoke Shepherd’s IFP
status, arguing that he was not in “imminent danger of serious physical injury.”
2 The case was ultimately transferred to Judge Larimer in the Western District of New York.
In support of their motion, Defendants attached sworn declarations from
Shepherd’s doctors, Dr. Michelle Belgard and Dr. Marshall Trabout, and
Shepherd’s medical records. The district court directed Shepherd to respond to
Defendants’ motion. Shepherd responded, attaching two sworn affirmations and
one sworn declaration, as well as a variety of exhibits.
On July 6, 2017, the district court dismissed Shepherd’s complaint. First, the
court reasoned that Shepherd had deliberately misled the court by failing to
disclose his three prior “strikes,” especially in light of Shepherd’s familiarity with
the court system and long litigation history. Second, as to his IFP status, the court
held that Shepherd’s fear of “imminent danger of serious physical injury” was
“without foundation,” and that there was “no indication” that he was in such
danger. Dist. Ct. Doc. No. 40 at 6. Although the order did not expressly state
whether dismissal was with prejudice, the court entered judgment for Defendants.
Shepherd timely filed a notice of appeal.
II. LEGAL STANDARD
We review a district court’s denial of IFP status pursuant to 28 U.S.C. § 1915
de novo. See Polanco v. Hopkins, 510 F.3d 152, 155 (2d Cir. 2007). We review a
sanction of dismissal with prejudice for abuse of discretion. Koehl v. Bernstein, 740
F.3d 860, 862 (2d Cir. 2014). 6
III. DISCUSSION
Shepherd principally advances two arguments. First, as to the revocation
of his IFP status, Shepherd argues that the district court erred by considering
materials beyond the complaint in determining whether he qualified for the
imminent‐danger exception to the three‐strikes rule. Second, Shepherd avers that
the district court failed to give him adequate notice that it was contemplating
dismissing his complaint with prejudice and that the district court failed to
consider lesser sanctions than dismissal. Although we need not strictly reach the
IFP issue if the sanction of dismissal was proper – as the imminent‐danger
exception under Section 1915(g) bears only on whether Shepherd would be
required to pre‐pay the filing fee – we nonetheless provide clarity to the district
courts as to the appropriateness of holding an evidentiary hearing when a
provisional determination of imminent danger is challenged.
A. Imminent‐Danger Exception
Adopted in 1996, the Prison Litigation Reform Act (PLRA) made a series of
amendments to 28 U.S.C. § 1915, which is the statute that governs IFP status for
incarcerated individuals. See Leonard v. Lacy, 88 F.3d 181, 182–83 (2d Cir. 1996).
Under the PLRA, prisoner‐litigants granted IFP status “must pay the full amount
of the filing fee to the extent they can afford to, as measured by the funds in their 7
prison accounts.” Harris v. City of New York, 607 F.3d 18, 21 (2d Cir. 2010). “The
fees are paid through periodic debits from the plaintiff’s prison account, which are
forwarded to the court by the custodial agency.” Id. Even if a prisoner has no
money available, he can still proceed IFP. See 28 U.S.C. § 1915(b)(4).
However, the PLRA restricts the availability of IFP status for frequent filers
through the “three‐strikes” rule.3 28 U.S.C. § 1915(g). This rule prohibits prisoner‐
litigants from bringing further actions or appeals IFP if they have brought at least
three prior actions that were dismissed because they were “frivolous, malicious,
or fail[ed] to state a claim upon which relief [could] be granted.” Id.; see also Harris,
607 F.3d at 20.4
But the three‐strikes rule itself contains an exception: prisoners are
permitted to file a lawsuit IFP – even if they have accumulated three strikes – if
3 The three‐strikes rule provides:
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.
28 U.S.C. § 1915(g).
4 Of course, a prisoner‐litigant barred from filing IFP by the three‐strikes rule is not prevented from filing a lawsuit – he must simply pre‐pay the filing fee. 8
they are “under imminent danger of serious physical injury.” Id. This “imminent‐
danger” exception is a “safety valve” that exists to “prevent impending harms.”
Malik v. McGinnis, 293 F.3d 559, 563 (2d Cir. 2002).
Shepherd argues that the district court erred by considering materials
outside the complaint when evaluating whether Shepherd qualified for the
imminent‐danger exception to the three‐strikes rule.
1. Consideration of Facts Outside the Complaint
We have not yet stated whether a district court may consider materials
outside the complaint (such as sworn submissions) or hold a hearing when a
defendant challenges a prisoner’s claim of imminent danger. In Chavis v. Chappius,
we noted that courts “should not make an overly detailed inquiry into whether [a
prisoner’s] allegations [of imminent danger of serious physical injury] qualify for
the exception,” because the three‐strikes rule “concerns only a threshold
procedural question.” 618 F.3d 162, 169 (2d Cir. 2010) (internal quotations
omitted). Nonetheless, in Chavis, we affirmed that denying leave to proceed IFP
is warranted “if the complainant’s ‘claims of imminent danger are conclusory or
ridiculous.’” Id. at 170 (quoting Ciarpaglini v. Saini, 352 F.3d 328, 331 (7th Cir.
2003)).
All of our sister circuits to have confronted this question have held that
district courts – upon challenge by a defendant – may conduct a narrow
evidentiary inquiry into the prisoner‐litigant’s fear of imminent danger. See Smith
v. Wang, 452 F. App’x 292, 293 (4th Cir. 2011); Taylor v. Watkins, 623 F.3d 483, 485–
86 (7th Cir. 2010); Fuller v. Myers, 123 F. App’x 365, 368 (10th Cir. 2005); Gibbs v.
Roman, 116 F.3d 83, 86–87 (3d Cir. 1997), overruled on other grounds by Abdul‐Akbar
v. McKelvie, 239 F.3d 307, 312 (3d Cir. 2001) (en banc). Additionally, district courts
throughout this circuit have uniformly held that courts may consider materials
outside of the complaint in conducting this limited inquiry. See, e.g., Abreu v.
Brown, 317 F. Supp. 3d 702, 706–07 (W.D.N.Y. 2018); Tafari v. Baker, No. 6:16‐cv‐
06472, 2017 WL 1406274, at *2 (W.D.N.Y. Apr. 20, 2017); Abreu v. Lira, No. 9:12‐cv‐
1385, 2014 WL 4966911, at *7 (N.D.N.Y. Sept. 30, 2014) (adopting report and
recommendation).
We agree that courts may reexamine a provisional determination that a
complainant is in “imminent danger of serious physical injury” when, after being
served with the complaint, a defendant challenges that determination. Congress
adopted the PLRA with the “principal purpose” of “deterring frivolous prisoner
lawsuits and appeals.” Nicholas v. Tucker, 114 F.3d 17, 19 (2d Cir. 1997). Allowing
courts to conduct a limited probe into the plausibility of a prisoner‐litigant’s claim
of imminent danger accords with the PLRA’s aims. Moreover, courts have long
permitted evidentiary submissions at the pleading stage in a variety of different
circumstances. For instance, in resolving a motion to dismiss for want of subject
matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1), “a district court
. . . may refer to evidence outside the pleadings.” Makarova v. United States, 201
F.3d 110, 113 (2d Cir. 2000). So too for a motion to dismiss for lack of personal
jurisdiction pursuant to Rule 12(b)(2), where district courts have “considerable
procedural leeway,” which includes “permit[ting] discovery in aid of the motion”
or conducting “an evidentiary hearing on the merits of the motion.” Dorchester
Fin. Sec., Inc. v. Banco BRJ, S.A., 722 F.3d 81, 84 (2d Cir. 2013) (quoting Marine
Midland Bank, N.A. v. Miller, 664 F.2d 899, 904 (2d Cir. 1981)). This is also true for
a motion to dismiss under Rule 12(b)(2)’s neighbor, Rule 12(b)(3), in which we
allow parties to submit affidavits to demonstrate lack of venue. See, e.g., Phillips v.
Audio Active Ltd., 494 F.3d 378, 384 (2d Cir. 2007).
Affording district courts the latitude to conduct a limited inquiry is crucial
when a defendant challenges a provisional determination that a prisoner is in
imminent danger of serious physical injury. Holding otherwise would allow
prisoner‐litigants to continue proceeding IFP where an assertion of imminent
danger is made – even if defendants had “incontrovertible proof that rebutted
those allegations.” Taylor, 623 F.3d at 485. Such a rigid application would erode
the efficacy of the PLRA’s three‐strikes rule, by allowing “easy evasion” of the rule
if the litigant uttered the right words. Id. It would also contradict this Court’s
acknowledgment that district courts need not accept “conclusory” or “ridiculous”
assertions of imminent danger. Chavis, 618 F.3d at 170. And it would stand in
marked contrast to our approach with other gate‐shuttering mechanisms, such as
motions to dismiss for lack of subject‐matter jurisdiction, personal jurisdiction,
and venue.
The Ninth Circuit’s decision in Andrews v. Cervantes, 493 F.3d 1047 (9th Cir.
2007), is not to the contrary. Like Chavis, Andrews reaffirmed that, while courts are
permitted to probe the plausibility of an allegation of imminent danger, they
should not “make an overly detailed inquiry into whether the allegations qualify
for the exception.” 493 F.3d at 1055. Nothing in Andrews purports to say, however,
that defendants cannot mount a limited factual challenge to a district court’s
provisional determination that a prisoner satisfies the imminent‐danger exception,
or that district courts’ hands are tied in resolving this conflict. Andrews only
cautions – and we agree – that any such inquiry should be narrow.
Of course, a narrow evidentiary challenge to a provisional determination
that a prisoner is in imminent danger of serious physical injury should not
metastasize into “a full‐scale merits review.” Taylor, 623 F.3d at 486. Because any
such inquiry concerns only a “threshold procedural question,” Chavis, 618 F.3d at
169, resolving a challenge to the imminent‐danger exception “does no more than
permit the complainant to proceed with his or her cause of action [with or] without
pre–payment of the filing fee in full,” Gibbs, 116 F.3d at 87 n.7.
2. Application to Shepherd’s Case
The district court did not err in its conclusion that Shepherd’s claim of
imminent danger was “without foundation.” Dist. Ct. Doc. No. 40 at 6. Shepherd
asserted below that he was in imminent danger of serious physical injury because
(1) he “suffered numerous falls when made to walk long distances,” (2) doctors at
the prison “refuse[d] to issue pain medication that [would] offer [him] relief,” and
(3) his muscles atrophied as a result of being “confined to his cell 24 hours a day.”
Dist Ct. Doc. No. 7.
Dr. Belgard explained in a sworn declaration that, while Shepherd does
have chronic back pain, he has both wheelchair access and ambulatory aids – such
as a cane – to “ensure he does not fall when walking.” Dist. Ct. Doc. No. 27‐1 ¶ 12.
Dr. Trabout similarly noted that Shepherd has access to a variety of walking aids.
According to Dr. Trabout, Shepherd simply “did not want to use his ambulatory
aids or wheelchair,” as he alleged that they “caused him discomfort.” Dist. Ct.
Doc. No. 27‐2 ¶ 10.
As to Shepherd’s allegation that doctors refused to prescribe him pain
medication, Dr. Belgard stated that she did, in fact, prescribe Shepherd pain
medication, “although he . . . frequently refused to take [it].” Dist. Ct. Doc. No. 27‐
1 ¶ 13. Indeed, Shepherd was prescribed Motrin, which he refused to take on the
basis that it caused stomach irritation. Then, when Dr. Belgard prescribed Prilosec
(which would address any stomach irritation), Shepherd still refused to take his
medication. Shepherd even rebuffed Dr. Belgard’s third attempt to prescribe a
medication, Mobic, which would have “significantly reduced if not eliminated
entirely” his stomach irritation. Id. ¶¶ 16, 17.
Finally, Shepherd’s contention that his muscles atrophied as a result of 24‐
hour confinement was shown to be “ridiculous.” Chavis, 618 F.3d at 170. As Dr.
Trabout explained, Shepherd was kept in “medical keeplock” – medically ordered
bed‐rest – at his own request. Specifically, Shepherd said that his knee and back
pain “made it difficult to walk to the messhall for food.” Dist. Ct. Doc. No. 27‐2
¶ 9. He then complained that his cell was too far from the law library. But as Dr.
Trabout noted, Shepherd did not suffer and was not at “imminent” risk of
suffering from muscular atrophy for at least two reasons. First, he had access to
medical services at any time, and would have been treated promptly for any signs
of muscular degeneration. Second, Shepherd had an hour of recreation time each
day, during which he could perform any number of exercises – including walking
– to prevent or counter muscular atrophy.
In response to the declarations of his doctors and the medical records cited
therein, Shepherd offers a hodgepodge of contradictory excuses that further
undermine his contention that he was in imminent danger of serious physical
injury. For example, he contends that he wouldn’t use his wheelchair because it
exacerbated his lower back pain, and that using a cane didn’t stop him from
falling. Shepherd also insists he never requested medical keeplock – which might
help avoid this pain – while at the same time acknowledging that he requested a
placement where he would not have to “walk long distances.” Additionally,
Shepherd essentially concedes that he refused to take the medications prescribed
to him, but only states that these medicines were, based on past experience,
“ineffective.” Shepherd also states that he was in such extreme pain – he couldn’t
“move out of bed at times” – that he was unable to exercise or otherwise stave off
atrophy.
The evidentiary submissions showed Shepherd’s explanation for why he
was in imminent danger to be both circular and completely conclusory – indeed,
as the district court concluded, “without foundation.” The district court did not
therefore err in revoking his IFP status.
B. Notice of Possible Sanctions
Shepherd also argues that the district court erred procedurally by not giving
him adequate notice that his complaint could be dismissed – and judgment
entered for Defendants – as a sanction for furnishing false statements to the court
by deliberately omitting “strike” cases from his complaint.
“A court has the inherent power to supervise and control its own
proceedings and to sanction counsel or a litigant for bad‐faith conduct.” Sussman
v. Bank of Israel, 56 F.3d 450, 459 (2d Cir. 1995). “At a minimum,” sanctions should
not be imposed without adequate notice and an opportunity to be heard. Schlaifer
Nance & Co. v. Estate of Warhol, 194 F.3d 323, 334 (2d Cir. 1999).
Shepherd unquestionably received adequate notice, and had an opportunity
to be heard, before the district court dismissed his action. Defendants asked the
district court to dismiss Shepherd’s complaint as a sanction for misleading the
court as to his litigation history. The district court – in ordering Shepherd to
respond – stated bluntly that “the claims plaintiff asserts in his complaint may be
dismissed without a trial if he does not respond to this motion.” Dist. Ct. Doc. No.
30. Indeed, Shepherd’s response demonstrates that he was well aware of the
possible repercussions. Not only did his response attempt to articulate why the
omission of the three prior strikes was not misleading, but it also endeavored to
explain why the court should not dismiss his complaint. Especially given
Shepherd’s long familiarity with the court system, it is clear that Shepherd had
adequate notice of the possibility of dismissal with prejudice.
C. Consideration of Lesser Sanctions
Finally, Shepherd contends that the district court improperly failed to
consider a lesser sanction than dismissal. We have repeatedly stated that dismissal
is a harsh sanction that requires a district court to at least consider lesser remedial
measures before imposing that sanction. See, e.g., Selletti v. Carey, 173 F.3d 104, 111
(2d Cir. 1999) (explaining that before a district court dismisses an action for failure
to comply with a court order it must consider, among other things, “a sanction less
drastic than dismissal”); Dodson v. Runyon, 86 F.3d 37, 39 (2d Cir. 1996) (“The
remedy [of dismissal] is pungent, rarely used, and conclusive. A district judge
should employ it only when he is sure of the impotence of lesser sanctions.”
(internal quotation marks omitted)). Failure to consider a lesser sanction than
dismissal is generally an abuse of discretion. See In re Harris, 464 F.3d 263, 272 (2d
Cir. 2006) (“Dismissing the [case] without determining whether a lesser sanction
would have been appropriate . . . was an abuse of discretion.”).
However, where, as here, a litigant acted in bad faith, has significant
experience with the workings of the court, and has an extensive history with the
IFP statute, we have affirmed dismissal as a sanction even when the district court
did not explicitly consider a lesser sanction. See Vann v. Commʹr of N.Y. City Depʹt
of Correction, 496 F. App’x 113, 116 (2d Cir. 2012) (affirming dismissal with
prejudice where prisoner‐litigant with “litigation experience and extensive
familiarity of the [IFP] process” made false statements and concealed income on
IFP application); see also S. New England Tel. Co. v. Glob NAPs Inc., 624 F.3d 123, 148
(2d Cir. 2010) (stating that “district courts are not required to exhaust possible
lesser sanctions before imposing dismissal or default if such a sanction is
appropriate on the overall record”). In the present circumstances, we are satisfied
that the district court’s sanction of dismissal was not an abuse of discretion.
IV. CONCLUSION
For the foregoing reasons, the judgment of the district court is AFFIRMED.