Andrews v. Cervantes ( 2007 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ANTOLIN ANDREWS, 
Plaintiff-Appellant,
v.
SANTOS CERVANTES, Appeals No. 04-17459
Coordinator; TOM L. CAREY,
Warden; JAMES E. TILTON,* D.C. No.
Director of the California CV-03-01218-WBS
Department of Corrections and  ORDER
Rehabilitation; TREVINO, Sergeant; AMENDING
H. KOSHER, Librarian; THERESA OPINION AND
RICE, Supervisor of Adult AMENDED
Instruction; M. VALDEZ, OPINION
Correctional Officer at CSP
Solano; MILLS, Correctional
Officer at CSP Solano,
Defendants-Appellees.

Appeal from the United States District Court
for the Eastern District of California
William B. Shubb, Chief District Judge, Presiding
Argued and Submitted
December 8, 2006—San Francisco, California
Filed June 26, 2007
Amended July 5, 2007
*James E. Tilton is substituted for his predecessor, Ed Alameida, as
Director of the California Department of Corrections and Rehabilitation.
Fed R. App. P. 43(c)(2).
8005
8006 ANDREWS v. CERVANTES
Before: Dorothy W. Nelson, Robert E. Cowen,** and
Marsha S. Berzon, Circuit Judges.
Opinion by Judge Berzon
**The Honorable Robert E. Cowen, Senior United States Circuit Judge
for the Third Circuit, sitting by designation.
ANDREWS v. CERVANTES 8009
COUNSEL
Paul T. Friedman, Morrison & Foerster, LLP, San Francisco,
California, and Melissa Ann Jones, Morrison & Foerster,
LLP, Sacramento, California, for the plaintiff-appellant.
Megan R. O’Carroll, Deputy Attorney General, Sacramento,
California, for defendant-appellee James E. Tilton.
ORDER
The Opinion filed on June 26, 2007, is amended as follows:
[Slip Opinion at p. 7640]
Replace the words “previously determined not to cause an
imminent danger” at the end of footnote 11 with the words
“rejected in an earlier case.”
8010 ANDREWS v. CERVANTES
OPINION
BERZON, Circuit Judge:
Antolin Andrews is a prisoner who has filed several dozen
lawsuits in federal court during his confinement. Although he
has become as adept as the best attorney at accessing the
courthouse clerk’s office, his success rate on the merits of his
cases is much less enviable. And therein lies Andrews’s prob-
lem.
Since the 1996 passage of the Prison Litigation Reform Act
(“PLRA”), an inmate like Andrews who has filed numerous
unsuccessful lawsuits can become ineligible to file additional
lawsuits in federal court without paying the ordinary $350 fee
upon filing, even if the inmate is indigent. The PLRA pro-
vides for such a limitation on filing suit through its rule, nick-
named the “three-strikes rule,” making in forma pauperis
(“IFP”) status unavailable to prisoners who have “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.” 28 U.S.C. § 1915(g); see also Andrews v. King, 398
F.3d 1113, 1116 n.1 (9th Cir. 2005) (noting the “three strikes”
terminology). When Andrews filed the lawsuit underlying this
appeal, the district court found that the three-strikes rule
applied to Andrews, refused Andrews’s request to proceed
IFP, and ordered the case closed.
There is, however, an exception to the PLRA’s three-strikes
rule, allowing for filing without prepaying the $350 fee when
“the prisoner is under imminent danger of serious physical
injury.” 28 U.S.C. § 1915(g). Andrews’s complaint alleged a
cause of action under 42 U.S.C. § 1983 for cruel and unusual
punishment premised on the danger of contracting various
communicable diseases. The California Department of Cor-
rections and Rehabilitation (“DCR”), Andrews alleged, had
ANDREWS v. CERVANTES 8011
an ongoing policy of not screening inmates for such diseases
and instead housing contagious inmates with others without
regard to the risk they pose.
We hold that the district court should have allowed
Andrews’s lawsuit to proceed IFP because he sufficiently
alleged an “imminent danger of serious physical injury.” Our
holding is quite narrow: We hold only that the district court
should have accepted Andrews’s lawsuit without demanding
an upfront $350 payment based on the allegations appearing
on the face of the complaint. We express no opinion on the
proper treatment of the complaint once it is docketed — and
quite properly so, because the three-strikes rule is a screening
device that does not judge the merits of prisoners’ lawsuits.
I.
On June 6, 2003, Andrews filed the pro se complaint under-
lying this appeal. At that time he was incarcerated at the Cali-
fornia State Prison, Solano (“Solano”).
As Claims One and Two of the complaint, Andrews alleged
that the threat he faced from contagious diseases at Solano
violated the Eighth Amendment prohibition against cruel and
unusual punishment. Specifically, his complaint asserted that
DCR “has no policy in place to screen . . . inmates for conta-
gious diseases upon the reception of . . . inmates into the
prison system.” This meant, Andrews went on to allege, that
during his time at Solano he had been “placed in close prox-
imity with inmates that the institution knew or should have
known would or could infect me with disease.” Andrews
detailed that during the previous six months, he had been
housed with five inmates with contagious diseases — two
infected with HIV/AIDS, two infected with Hepatitis C, and
one infected with Heliobacter pylori. He noted that
“[c]urrently, there is an epidemic of hepatitis C at CSP Solano
yet there are no steps taken to prevent further spread of the
8012 ANDREWS v. CERVANTES
disease.” And he alleged that prison officials failed to act after
he raised these health concerns.
The complaint recounted in detail the reason why these
contagious inmates posed a danger: The very close quarters in
prison cells, the communal toilets, and the fact that inmates,
even without permission, use their cellmates’ personal
hygiene items, including toothbrushes and razors, mean that
“it is quite possible,” according to Andrews, that communica-
ble diseases can be transferred to non-infected inmates if
inmates with communicable diseases are not segregated.
Andrews also alleged that Solano’s staff doctor had confirmed
these means of transmission. In support of his assertions
Andrews noted that he had contracted tuberculosis while
incarcerated in another California prison in 1987 and likely
had contracted some disease while in Solano that caused pain-
ful lumps to develop on his thighs. Based on his ongoing
proximity to diseased inmates and the possibility of transmis-
sion between cellmates, Andrews alleged that “I have been
subjected to harm in the past and I will be subjected to harm
in the future.” Andrews asked for injunctive relief requiring
DCR “to test every inmate currently in the Department for
contagious diseases and to house and treat each inmate for the
infections that they are found to have appropriately” or, alter-
natively, requiring that Andrews be placed in a single-inmate
cell.
Andrews’s complaint also contained five causes of action
not related to infectious diseases. These alleged causes of
action raised various due process, equal protection, and First
Amendment challenges to the operation of Solano’s grievance
system and to its practices for assigning employment to
inmates.
When he filed his complaint Andrews sought leave to pro-
ceed IFP. A magistrate judge found that Andrews had filed
while incarcerated three lawsuits later dismissed for failing to
state a claim, and that the PLRA’s three-strikes rule barred
ANDREWS v. CERVANTES 8013
Andrews from proceeding IFP unless he was “under imminent
danger of serious physical injury.” The magistrate judge
granted Andrews leave to make such a showing.
Andrews responded by noting that he had shared cells with
thirty-six inmates while at Solano and knew that six of those
inmates had contagious diseases. “As a result,” Andrews
asserted, “I have come into contact with hepatitis. . . . [N]ow
my body is said to have contacted the hepatitis disease, a dis-
ease that is incurable and will be with me for life.” His
response also reiterated the complaint’s allegations of ongo-
ing risk:
There is a high probability of future harm since
the [DCR] Director still fails to test persons brought
into the institutions and still continues to house those
persons in cells which have limited air flow, where
the inmates housed with them may use personal
items without permission to do so and thereby trans-
fer disease.
I claim that the practice of housing inmates with
contagious diseases with those who are well . . . can
lead to my being infected by the various diseases
that run rampant throughout the Department’s insti-
tutions.
The magistrate judge found that Andrews failed to meet the
“imminent danger” exception because he “does not allege he
presently is housed with a contagious prisoner.” The magis-
trate judge therefore recommended that the district court deny
Andrews IFP status. Andrews opposed the magistrate judge’s
finding, specifying that he was housed with a hepatitis-
infected inmate at the time he filed the complaint. He pro-
tested that his allegations concerning “the lack of testing
means that he is subject to be housed with more contagious
diseases in the future.”
8014 ANDREWS v. CERVANTES
The district court adopted the magistrate judge’s recom-
mendation, determining that Andrews could not meet the “im-
minent danger” exception when he “alleged he already had
contracted hepatitis and did not allege he was presently con-
fined with a prisoner with another contagious disease.” The
district court judge therefore denied Andrews’s application to
proceed IFP and directed the clerk to close the case.
After Andrews timely filed his notice of appeal, we granted
his request to proceed IFP on appeal and appointed pro bono
appellate counsel. While the appeal has been pending,
Andrews has been transferred to a federal immigration deten-
tion facility in Tacoma, Washington. His appellate brief
asserts that he “has been advised by the [DCR] that he
remains in the ‘custody’ of the [DCR]; . . . he is informed and
believes that when he is released from the Tacoma facility, he
will be move to a [DCR] facility.”
II.
[1] Plaintiffs normally must pay $350 to file a civil com-
plaint in federal district court, 28 U.S.C. § 1914(a), but 28
U.S.C. § 1915(a)(1) allows the district court to waive the fee,
for most individuals unable to afford it, by granting IFP status.1
To address concerns that prisoners proceeding IFP were bur-
dening the federal courts with frivolous lawsuits, the PLRA
1
The statute provides that
any court of the United States may authorize the commencement,
prosecution or defense of any suit, action or proceeding, civil or
criminal, or appeal therein, without prepayment of fees or secur-
ity therefor, by a person who submits an affidavit that includes
a statement of all assets such prisoner possesses that the person
is unable to pay such fees or give security therefor.
28 U.S.C. § 1915(a)(1); see also Lister v. Dep’t of the Treasury, 408 F.3d
1309, 1312 (10th Cir. 2005) (explaining that the statute applies to all per-
sons notwithstanding its “prisoner possesses” language, and collecting
cases so holding).
ANDREWS v. CERVANTES 8015
altered the IFP provisions for prisoners in an effort to discour-
age such suits. See Abdul-Akbar v. McKelvie, 239 F.3d 307,
312 (3d Cir. 2001) (en banc). Although indigent prisoners are
still accorded IFP status if they establish that they meet the
prerequisites, § 1915(b) provides that prisoners proceeding
IFP must pay the filing fee as funds become available in their
prison accounts. Additionally, prisoners who have repeatedly
brought unsuccessful suits may entirely be barred from IFP
status under the three-strikes rule:
In no event shall a prisoner bring a civil action . . .
under this section [authorizing IFP proceedings] 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 immi-
nent danger of serious physical injury.
28 U.S.C. § 1915(g). At issue in this case is the exception
contained in § 1915(g) for prisoners “under imminent danger
of serious physical injury.”2
“The denial of a motion to proceed IFP is appealable as a
final judgment under 28 U.S.C. § 1291.” Andrews, 398 F.3d
at 1118. We review the district court’s interpretation and
application of § 1915(g) de novo. Id.
2
Because we hold that Andrews could proceed IFP with his entire com-
plaint pursuant to the “imminent danger” exception, we do not address his
contention — undecided in this circuit — that the district court improperly
treated a suit dismissed pursuant to Heck v. Humphrey, 512 U.S. 477(1994), as a strike under the PLRA. We also have no reason to address
Andrews’s arguments that the district court procedurally erred in deter-
mining that certain prior suits counted as strikes or that the three-strikes
rule was unconstitutionally applied to him.
8016 ANDREWS v. CERVANTES
[2] This circuit has not previously addressed the “imminent
danger” exception to the three-strikes rule, but several other
circuits have done so. In examining those decisions, we find
general agreement on two pertinent points: Prisoners qualify
for the exception based on the alleged conditions at the time
the complaint was filed. And qualifying prisoners can file
their entire complaint IFP; the exception does not operate on
a claim-by-claim basis or apply to only certain types of relief.
Because we agree that both determinations accord with the
best reading of the statute, we adopt them as well. With these
preliminary principles established, we then consider, informed
by other circuits’ examinations of the provision, whether
Andrews’s specific complaint satisfies both the “imminent
danger” and “serious physical injury” prongs.3
A.
[3] The PLRA provides that a prisoner with three strikes
cannot use IFP status to “bring a civil action . . . unless the
prisoner is under imminent danger of serious physical injury.”
28 U.S.C. § 1915(g) (emphases added). The exception’s use
of the present tense, combined with its concern only with the
initial act of “bring[ing]” the lawsuit, indicates to us that the
exception applies if the danger existed at the time the prisoner
filed the complaint.4 See United States v. Jackson, 480 F.3d
1014, 1018-19 (9th Cir. 2007) (noting the use of tenses in
statutes generally is significant and “one would not refer in
3
There is only scant legislative history regarding the PLRA. None of it
refers to the three-strikes exception. See B. Patrick Costello, Jr., “Immi-
nent Danger” Within 28 U.S.C. § 1915(g) of the Prison Litigation Reform
Act: Are Congress and Courts Being Realistic?, 29 J. LEGIS. 1, 5 (2002).
4
The statute also prevents prisoners with three strikes from using IFP
status to “appeal a judgment.” A motions panel of this court granted IFP
status to Andrews for the appeal, and the state has not challenged his right
to appeal IFP. We therefore do not determine the time at which imminent
danger must exist for the purposes of an IFP appeal. Moreover, the record
reflects no change in the danger Andrews faced between the time he filed
his complaint and the time he filed his appeal.
ANDREWS v. CERVANTES 8017
the present tense to something that had already happened”
(citing The Dictionary Act, 1 U.S.C. § 1)). In other words, the
availability of the exception turns on the conditions a prisoner
faced at the time the complaint was filed, not at some earlier
or later time. Andrews’s removal from the California prison
system after filing the complaint is therefore irrelevant to our
§ 1915(g) analysis.5
[4] The six other circuits that have addressed the issue have
all concluded, similarly, that district courts should determine
whether there is an “imminent danger of serious physical inju-
ry” on the basis of the conditions at the time the complaint
was filed. Ciarpaglini v. Saini, 352 F.3d 328, 330 (7th Cir.
2003); Malik v. McGinnis, 293 F.3d 559, 562-63 (2d Cir.
2002); Abdul-Akbar, 239 F.3d at 312;6 Medberry v. Butler,
185 F.3d 1189, 1193 (11th Cir. 1999); Baños v. O’Guin, 144
F.3d 883, 884 (5th Cir. 1998) (per curiam); Ashley v. Dil-
worth, 147 F.3d 715, 717 (8th Cir. 1998) (per curiam). The
Seventh Circuit has rejected the argument that a prisoner’s
transfer out of a prison after the complaint was filed affected
his ability to invoke the exception. See Ciarpaglini, 352 F.3d
at 330. Although no other circuit has specifically addressed
post-complaint changes in circumstance, all maintain a singu-
lar focus on the facts alleged in the complaint in deciding
5
This conclusion does not foreclose the possibility that Andrews’s move
from Solano mooted his request for injunctive relief. See Johnson v.
Moore, 948 F.2d 517, 519 (9th Cir. 1991) (per curiam) (holding claims for
injunctive relief “relating to [a prison’s] policies are moot” when the pris-
oner has been moved and “he has demonstrated no reasonable expectation
of returning to [the prison]”). Andrews’s complaint requested damages
from prison officials for violating his due process, equal protection, and
First Amendment rights, however, so the case as a whole is not moot. See
id. We therefore do not consider whether Andrews had a “reasonable
expectation of returning to” a prison run by DCR.
6
Abdul-Akbar overruled the Third Circuit’s holding in Gibbs v. Roman,
116 F.3d 83 (3d Cir. 1997), that the dispositive question was the “danger
faced by the inmate at the time of the alleged incident, and not at the time
the complaint was filed,” id. at 86. Gibbs offered no analysis of the statu-
tory language to support its result.
8018 ANDREWS v. CERVANTES
whether a prisoner faced the requisite harm. See, e.g., Ibrahim
v. Dist. of Columbia, 463 F.3d 3, 6 (D.C. Cir. 2006) (“In
determining whether he qualifies [for the “imminent danger”
exception], we look to the complaint . . . .” ); Brown v. John-
son, 387 F.3d 1344, 1350 (11th Cir. 2004) (“[T]he issue
[under § 1915(g)] is whether his complaint, as a whole,
alleges imminent danger of serious physical injury.”). We are
in agreement with all of these cases in holding that it is the
circumstances at the time of the filing of the complaint that
matters for purposes of the “imminent danger” exception to
§ 1915(g).
[5] We further conclude, again in accord with the circuits
that have decided the issue, that once a prisoner satisfies the
exception to the three-strikes rule and otherwise qualifies for
IFP status, the district court must docket the entire complaint
and resolve all of its claims, without requiring the upfront
payment of the filing fee. Consequently, although a number
of the claims in Andrews’s suit unquestionably did not allege
an imminent danger of serious physical injury, the complaint
as a whole should have proceeded IFP if his allegations about
the danger he faces from contagious diseases met the requisite
standard.
The PLRA specifies that a prisoner with three strikes can-
not use IFP status to “bring a civil action . . . if the prisoner
has, on 3 or more prior occasions, while incarcerated or
detained in any facility, brought an action . . . that was dis-
missed on 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) (emphases added). As the Supreme Court
has recently observed, in the course of interpreting another
PLRA provision, “statutory references to an ‘action’ have not
typically been read to mean that every claim included in the
action must meet the pertinent requirement before the ‘action’
may proceed.” Jones v. Bock, 127 S. Ct. 910, 924 (2007).
ANDREWS v. CERVANTES 8019
Nor would such a reading make sense with regard to
§ 1915(g). We have previously held that in determining
whether a prisoner has accumulated three strikes because they
have “on 3 or more occasions . . . brought an action . . . that
was dismissed” on the specified grounds, 28 U.S.C. § 1915(g)
(emphasis added), the district court must “determine that a
prior case was dismissed because it was ‘frivolous, malicious
or fail[ed] to state a claim,’ ” Andrews, 398 F.3d at 1120(emphasis added) (quoting § 1915(g)) (alteration in original).
In other words, we already have determined that one use of
the term “action” in § 1915(g) refers to a case as a whole
rather than just its individual claims. It therefore would be
highly anomalous to read the second use of “action” in the
same subsection any differently, and we will not do so. See
Jones, 127 S. Ct. at 925 (refusing to read two uses of the word
“action” in another subsection of the PLRA in an incongruous
manner).
Moreover, allowing the whole suit to be filed if the “immi-
nent danger” exception applies to any part of it makes practi-
cal sense. The fee pertains to the action as a whole, not to
subparts of it; there is no provision for prorating a filing fee.
So the only way the exception could fulfill its purpose is for
it to apply to the suit as a whole.
The Third Circuit has reached a like conclusion in a similar
case:
After the threshold issue of imminent danger is
resolved . . . , the focus of the litigation may gener-
ally shift to other issues. Satisfaction of the “immi-
nent danger” element does no more than permit the
complainant to proceed with his or her cause of
action without pre-payment of the filing fee in full.
Once the fee barrier has been overcome, the merits
of the cause of action itself are then available for
consideration and decision.
8020 ANDREWS v. CERVANTES
For example, if the substance of the complaint
deals with claims unrelated to the issue of imminent
danger . . . , once the § 1915(g) threshold has been
met, the “imminent danger” issue may be totally
irrelevant to the adjudication of the merits of the
alleged constitutional violations.
Gibbs v. Roman, 116 F.3d 83, 87 n.7 (3d Cir. 1997), over-
ruled en banc on other grounds by Abdul-Akbar, 239 F.3d at
312. The rule in the Seventh Circuit is the same, see Ciar-
paglini, 352 F.3d at 330 (“[Section 1915(g)] only limits when
frequent filers can proceed IFP, and says nothing about limit-
ing the substance of their claims.”), and the D.C. Circuit has
so assumed without expressly addressing the issue, Ibrahim,
463 F.3d at 5-8 (reversing, on all but one claim, the dismissal
of a prisoner’s complaint that “allege[d] a smorgasbord of
wrongdoings by the defendants,” including due process and
First Amendment violations, after concluding that one claim
met the imminent danger of serious physical injury standard).7
[6] In sum, if Andrews’s Eighth Amendment claim alleged
that he faced an “imminent danger” at the time he filed the
complaint, § 1915(g) allows his entire lawsuit to proceed IFP
even if Andrews otherwise met the three-strikes criteria.
B.
We now turn to the question whether Andrews did suffi-
ciently state an imminent danger of serious physical injury in
the portion of his complaint concerning the alleged risk to his
health arising from DCR’s inmate health screening policy.
7
Our holding also is consistent with the Seventh Circuit’s general inter-
pretation of § 1915(a) before the enactment of the PLRA. See Aiello v.
Kingston, 947 F.2d 834, 836 (7th Cir. 1991) (“When . . . the complaint
states multiple theories of relief against the same defendants, . . . [t]he dis-
trict judge must grant or deny leave to proceed without prepayment of
costs with respect to all claims in such a complaint.”).
ANDREWS v. CERVANTES 8021
Andrews filed his complaint pro se, so in making this deter-
mination we must liberally construe his allegations. See Wolfe
v. Strankman, 392 F.3d 358, 362 (9th Cir. 2004) (“We con-
strue the complaint liberally because it was drafted by a pro
se plaintiff.”); see also Brown, 387 F.3d at 1350 (construing
the allegations in a pro se complaint liberally to determine
whether the § 1915(g) danger exception was satisfied).
[7] We stress at the outset that § 1915(g) concerns only a
threshold procedural question — whether the filing fee must
be paid upfront or later. Separate PLRA provisions are
directed at screening out meritless suits early on. See 28
U.S.C. §§ 1915(e)(2)(B), 1915A(b). As the Seventh Circuit
explained, the limited office of § 1915(g) indicates that we
should not make an overly detailed inquiry into whether the
allegations qualify for the exception:
The State says [the prisoner’s] allegations are not
serious enough. However, § 1915(g) is not a vehicle
for determining the merits of a claim. To follow the
State’s logic, a district court would not just need to
determine whether a prisoner is alleging some type
of ongoing or imminent harm. It would also need to
fine-tune what is “serious enough” to qualify for the
exception. Is being denied heart medication? What
about a cholesterol-lowering drug? How frequently
do beatings need to occur before they are serious?
This 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. This is not required
....
Ciarpaglini, 352 F.3d at 331. Instead, the exception applies if
the complaint makes a plausible allegation that the prisoner
faced “imminent danger of serious physical injury” at the time
of filing.
8022 ANDREWS v. CERVANTES
[8] Andrews’s allegation that he is at risk of contracting
HIV or hepatitis C, if true, more than plausibly raises the
specter of serious physical injury. These diseases quite obvi-
ously cause serious health problems, and can result in death.
See Ibrahim, 463 F.3d at 7 (“[W]e have no difficulty conclud-
ing that a chronic disease that could result in serious harm or
even death constitutes ‘serious physical injury.’ ”).8
[9] Whether Andrews’s complaint demonstrates that he sat-
isfied the “imminent danger” prong of the exception at the
time the complaint was filed is a closer question. The district
court held that Andrews was not in “imminent danger of seri-
ous physical injury” at the time he filed his complaint because
“he already had contracted hepatitis and did not allege he was
presently confined with a prisoner with another contagious
disease.” The district court thus in essence required that for
the exception to apply, the prisoner must be directly exposed
to the danger at the precise time he filed the complaint.9
[10] The common definition of “imminent,” however, does
not refer only to events that are already taking place, but to
those events “ready to take place” or “hanging threateningly
over one’s head.” MERRIAM-WEBSTER’S COLLEGIATE DICTIO-
NARY 580 (10th ed. 1999); see also Ciarpaglini, 352 F.3d at
330 (“[T]he harm must be imminent or occurring at the time
8
The state disputes Andrews’s assertions about the seriousness of Helio-
bacter pylori. The allegations concerning HIV and hepatitis C suffice in
themselves, so we do not need to decide whether allegations of exposure
to Heliobacter pylori alone would be enough to trigger the exception. See
Brown, 387 F.3d at 1350 (dismissing the state’s argument that the plain-
tiff’s allegations about skin problems were not serious when he also com-
plained about complications from HIV and hepatitis).
9
Even under the standard it applied, the district court’s conclusion may
have been erroneous. Andrews specified in supplemental filings with the
district court that his cellmate was hepatitis-positive at the time of filing,
and his complaint can be read to state — although it is less than clear in
this regard — that he had only come into contact with, not already con-
tracted, the disease.
ANDREWS v. CERVANTES 8023
the complaint is filed.” (emphasis added)); Martin v. Shelton,
319 F.3d 1048, 1050 (8th Cir. 2003) (noting a prisoner could
invoke the § 1915(g) exception based upon “specific fact alle-
gations of ongoing serious physical injury, or of a pattern of
misconduct evidencing the likelihood of imminent serious
physical injury” (emphasis added)). Adopting the district
court’s standard would not only violate the common meaning
of “imminent,” but would also create an untenable Catch 22,
in which filings would always be either too early or too late
to invoke the provision. See Lewis v. Sullivan, 279 F.3d 526,
531 (7th Cir. 2002) (“If [the § 1915(g) exception is] limited
to situations in which, say, a beating is ongoing, no prisoner
will find solace; once the beating starts, it is too late to avoid
the physical injury; and once the beating is over the prisoner
is no longer in ‘imminent danger’ and so could not use this
proviso to seek damages . . . . Reading the imminent-danger
language this way would make it chimerical, a cruel joke on
prisoners.”).
[11] Instead, we believe that requiring a prisoner to “al-
lege[ ] an ongoing danger” — the standard adopted by the
Eighth Circuit — is the most sensible way to interpret the
imminency requirement. Ashley, 147 F.3d at 717. Applying
that standard, Ashley held that a prisoner’s allegations that
prison officials engaged in an ongoing pattern of placing him
near a group of inmates — his enemies — with a history of
causing serious injuries — demonstrated by past physical
assaults — satisfied the “imminent danger” requirement with-
out considering whether he was housed next to an enemy pris-
oner at the very moment he filed suit. Id. Similarly, Andrews
alleged that DCR policy created an ongoing pattern of placing
him in close proximity to inmates — those with serious conta-
gious diseases — with a history of causing serious injuries —
demonstrated by Andrews’s tuberculosis infection during a
previous period in DCR custody and by an ongoing hepatitis
outbreak at Solano.
8024 ANDREWS v. CERVANTES
[12] We therefore hold that Andrews satisfied the “immi-
nent danger” standard.10 In other words, 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. See Ciarpaglini, 352 F.3d at
330-31 (finding a prisoner’s allegations met the “imminent
danger” requirement when the prison’s decision to stop pro-
viding medications had caused a number of physical ail-
ments); McAlphin v. Toney, 281 F.3d 709, 710 (8th Cir. 2002)
(finding allegations about a prison’s failure to provide for a
tooth extraction sufficient to meet the “imminent danger”
requirement, when delay had previously allowed an infection
to spread in the inmate’s mouth).11
10
Because Andrews alleged that he was at risk of contracting serious
diseases other than hepatitis, in particular HIV/AIDS, it would not matter
if he was already infected by hepatitis at the time he filed the complaint.
See supra note 9.
11
We are not suggesting that a prisoner must always allege that the con-
tinuing practice has caused past harms in order to constitute an “ongoing
danger.” Such a look to history is simply one way a prisoner can make the
dispositive showing that the ongoing practice, if continued, “evidenc[es]
the likelihood of serious physical injury” at the moment the complaint was
filed. Martin, 319 F.3d at 1050. The harm from some ongoing practices
may be sufficiently obvious without showing a past injury resulting from
it. See Brown, 387 F.3d at 1350 (finding the alleged denial of medication
to treat HIV and hepatitis constituted “imminent danger” because of “the
alleged danger of more serious afflictions if he is not treated”); Gibbs v.
Cross, 160 F.3d 962, 965-66 (3d Cir. 1998) (finding the “imminent dan-
ger” requirement satisfied when an inmate alleged he was “forced to
breathe particles of dust and lint which were continuously being dispersed
into his cell through the ventilation system,” because “it is common
knowledge that improper ventilation and the inhalation of dust and lint
particles can cause disease”).
On the other hand, assertions of imminent danger of less obviously inju-
rious practices may be rejected as overly speculative or fanciful, when
they are supported by implausible or untrue allegations that the ongoing
practice has produced past harm. See Ciarpaglini, 352 F.3d at 331(“Courts . . . deny leave to proceed IFP when a prisoner’s claims of immi-
ANDREWS v. CERVANTES 8025
[13] The prison officials maintain that despite Andrews’s
allegation of an ongoing practice and past injuries due to the
practice, he did not allege “imminent danger” because HIV
and hepatitis C are not acquired through everyday contact.12
As we noted earlier, § 1915(g) merely establishes a threshold
procedural question and does not ask the court to evaluate the
merits of the suit. The prison officials’ argument about the
nature of HIV and hepatitis C may effectively rebut the merits
of Andrews’s allegations that DCR’s ongoing practice of not
screening and segregating inmates with HIV and hepatitis C
threatens his health. At this threshold stage however — and
given that Andrews does allege that cellmates engage without
permission in practices that could involve blood contact and
that Solano has had an outbreak of hepatitis C — Andrews’s
complaint adequately alleged “imminent danger” for
§ 1915(g) purposes. Andrews should therefore have been
granted IFP status to proceed with his entire complaint.
REVERSED and REMANDED.
nent danger are conclusory or ridiculous.”); Martin, 319 F.3d at 1048
(refusing to find an “imminent danger” based on “conclusory assertions
that defendants were trying to kill [the inmate] by forcing him to work in
extreme [weather] conditions despite his blood pressure condition”); see
also Andrews, 398 F.3d at 1118-20 (allowing defendants to prove that
§ 1915(g) renders a prisoner-plaintiff ineligible for IFP status). And nor-
mal preclusion principles will prevent a prisoner from avoiding the three-
strike rule based on allegations rejected in an earlier case.
12
The Centers for Disease Control and Prevention publications that the
prison officials cite for this proposition specifically warn against sharing
razors or toothbrushes in order to prevent the spread of HIV and hepatitis
C. Andrews’s complaint details that just such sharing can occur between
cellmates, even without permission.