taking judicial notice of a report by the Department of Justice’s Office of the Inspector General
How later courts described this case
- taking judicial notice of a report by the Department of Justice’s Office of the Inspector General
- taking judicial notice of government reports
Written by the judges who cited it.
The opinion
United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued May 13, 2024 Decided October 18, 2024
No. 22-5251
MICHAEL S. OWLFEATHER-GORBEY, A/K/A TSUNAMI KHAN,
APPELLANT
v.
AVERY, CAPT, USP THOMPSON, ET AL.,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 1:22-cv-02193)
Sonia Geba, Student Counsel, argued the cause as amicus
curiae in support of appellant. With her on the briefs were
Erica Hashimoto, Director, and Eva Shell, Supervisory
Attorney, both appointed by the court, and Alexis R. Casanas,
Student Counsel.
Michael S. Owlfeather-Gorbey, pro se, was on the briefs
for appellant.
Douglas C. Dreier, Assistant U.S. Attorney, argued the
cause for appellees. With him on the brief were Brian P.
Hudak and Jane M. Lyons, Assistant U.S. Attorneys. Kartik N.
Venguswamy, Assistant U.S. Attorney, entered an appearance.
2
Before: SRINIVASAN, Chief Judge, WILKINS and WALKER,
Circuit Judges.
Opinion for the Court filed by Circuit Judge WILKINS.
Opinion concurring in part and dissenting in part filed by
Circuit Judge WALKER.
WILKINS, Circuit Judge:
This is another suit brought by Michael Gorbey who is
currently serving a twenty-two year sentence in federal prison.
Gorbey v. United States, 55 F. Supp. 3d 98, 101 (D.D.C. 2014).
Following his sentencing in 2008, Mr. Gorbey quickly
distinguished himself as “a prolific litigator, filing scores of
suits across the country.” Pinson v. Dep’t of Just., 964 F.3d 65,
72 (D.C. Cir. 2020) (“Pinson II”); see also Gorbey, 55 F. Supp.
3d at 101. The allegations in this suit, like many of his others,
relate to Mr. Gorbey’s dissatisfaction with the conditions in a
prison where he is incarcerated.
As a general rule, litigation is not cheap. But for a short
time, Mr. Gorbey, as a federal prisoner, was able to proceed in
forma pauperis (“IFP”) and file his claims without paying the
full filing costs up front under the Prison Litigation Reform Act
(“PLRA”). See 28 U.S.C. § 1915. Mr. Gorbey’s days of
paying for filings in installments ended after three of his cases
were dismissed as “frivolous, malicious, or [for] fail[ure] to
state a claim.” 28 U.S.C. § 1915(g). Now, Mr. Gorbey must
pay his filing fees in full before bringing any case in federal
court unless he can show that he “is under imminent danger of
serious physical injury.” 28 U.S.C. § 1915(g) (“the three-
strikes exemption”). Here, we consider another one of Mr.
3
Gorbey’s attempts to proceed IFP under the three-strikes
exemption.
Before the District Court, and before us too, Mr. Gorbey
alleges that he is under imminent danger of serious physical
injury because prison officials have both repeatedly denied him
necessary medical treatments for his worsening glaucoma that
threatens blindness and instructed other prisoners to physically
assault him. The District Court rejected Mr. Gorbey’s
allegations that he is under an imminent danger of serious
physical injury, denied his motion to proceed IFP, and
dismissed his case without prejudice.
We disagree with the District Court that Mr. Gorbey’s
worsening glaucoma has not placed him under an imminent
danger of serious physical injury. Therefore, we grant Mr.
Gorbey’s motion to proceed IFP here, and reverse the District
Court’s denial of Mr. Gorbey’s motion to proceed IFP so that
his complaint may be docketed.
But we also recognize that Mr. Gorbey’s complaint
includes frivolous allegations against the United States
Attorney General, the Director of the Administrative Office of
Federal Courts, and the United States Senate Judiciary
Committee Members. And because the PLRA mandates
immediate dismissal of claims that are “frivolous,” we dismiss
the claims against the aforementioned defendants. 28 U.S.C.
§ 1915A(b)(1).
I.
A.
The District Court rejected Mr. Gorbey’s motion to
proceed IFP without hearing from the government. Mr.
Gorbey then appealed, and we ordered him to show cause
regarding the nonpayment of his filing fee. Given the short
4
time frame between the District Court’s dismissal, Mr.
Gorbey’s appeal, and our order to show cause, the allegations
in all of Mr. Gorbey’s filings are consistent. Thus, we look to
the allegations in both, Mr. Gorbey’s complaint and in his
response to the order to show cause, when evaluating his
motion to proceed IFP before our Court and whether the
District Court erred in denying his motion to proceed IFP.
Mr. Gorbey alleges that soon after he was transferred to
USP Thompson, in April 2022, prison officials were aware of
his litigious past and that he was at risk of losing his eyesight
because of rapidly worsening glaucoma. Mr. Gorbey’s
glaucoma, and the risks that it poses to his physical health, are
well-supported through multiple exhibits that he includes in the
record. See J.A. 70–84. In fact, one doctor feared that Mr.
Gorbey “is at high risk for developing a condition known as
‘Snuff-out’ syndrome,” which makes eye surgery a serious risk
as it could “accelerat[e] the eventual outcome of blindness.”
J.A. 72. Given the state of his glaucoma, Mr. Gorbey believes
that he now needs medical marijuana. J.A. 75.
Generally, Mr. Gorbey alleges that USP Thompson prison
officials began to target him because they were aware of his
litigious past. And one way that USP Thompson officials
targeted him was to deny “his prescribed glaucoma” medicine.
J.A. 10. These denials, which Mr. Gorbey alleges began the
moment he arrived at USP Thompson, were consistent with an
alleged threat made by Captain Avery who visited Mr.
Gorbey’s cell to specifically notify him that he was “in for a
ride” because of his past lawsuits. J.A. 11.
In response to these early incidents (Captain Avery’s
threats and general denials of needed glaucoma treatments),
Mr. Gorbey filed an informal complaint. J.A. 11. This
informal complaint only made things worse. Mr. Gorbey
5
alleges that, after he filed the complaint, he was again
threatened by another prison official. J.A. 11.
Mr. Gorbey further alleges, in great detail, that USP
Thompson officials intentionally contributed to his worsening
glaucoma as a form of retaliation. He specifically alleges that
USP Thompson officials “continuously” failed to refill his
medicine, J.A. 41, 116–17, on one occasion, contaminated his
eye drops with pepper spray, J.A. 14, and generally did not
allow him to see an ophthalmologist even though prison
officials were well-aware of his rapidly worsening condition,
J.A. 40. Mr. Gorbey further alleges that when USP Thompson
officials finally scheduled an ophthalmologist appointment, on
September 1, 2022, he was actually sent to an optometrist. J.A.
40–41, 124. At this ophthalmologist-turned-optometrist visit,
Mr. Gorbey asserts that he received only electronic eye scans,
which were inadequate given the rapidly worsening state of his
glaucoma.
Mr. Gorbey’s filings also include allegations that USP
Thompson officials compounded his medical problems by
responding violently to his complaints that he needed better
treatments. Specifically, Mr. Gorbey alleges that prison
officials instructed a few of USP Thompson’s most violent
inmates to attack him, and guaranteed that such attacks would
occur by housing him with the prisoners who were most likely
to heed the guard’s instructions to harm. See generally J.A.
14–16, 35, 37–39, 58. After those inmates attacked and
seriously injured him, Mr. Gorbey asserts that prison officials
failed to adequately tend to these injuries. See generally J.A.
17–18, 43–45, 64, 114, 123–24, 128.
Although the District Court rejected Mr. Gorbey’s motion
without hearing from the government, we ordered the
6
government to reply to the allegations that Mr. Gorbey
provided in his response to our order to show cause.
While the government acknowledges that Mr. Gorbey is at
serious risk of acquiring blindness, it contends that Mr. Gorbey
does not qualify under the three-strikes exemption because his
worsening glaucoma is not related to his suit that arises under
Bivens and the Federal Tort Claims Act. That is because, in the
government’s view, the only treatment that Mr. Gorbey will
accept is medical marijuana. In support of this argument, the
government provides three offerings: (1) Mr. Gorbey’s filings;
(2) an affidavit filed by Timothy Moisant, the Heath Services
Administrator at USP Thompson, who avers that Mr. Gorbey
has twice rejected eye surgery, J.A. 104; and (3) a court
decision from almost five years ago that noted that Mr. Gorbey
declined “the surgical procedure that a glaucoma specialist
[had] determined [was] necessary to prevent the disease from
causing him to lose his eyesight.” See Gorbey v. Mubarek, No.
RDB-19-220, 2019 WL 5593284 at *5 (D. Md. Oct. 30, 2019).
The government also disputes Mr. Gorbey’s allegation that
he has not seen an ophthalmologist since his transfer to USP
Thompson; Mr. Moisant avers that Mr. Gorbey’s September 1,
2022, appointment was “an external ophthalmology consult,
which included detailed testing, imaging, and scans of his eyes,
updates to his diagnosis, and a review of his medications.” J.A.
103.
Additionally, the government contends that Mr. Gorbey’s
allegations that USP Thompson officials coordinated
retaliatory prison assaults are insufficient to demonstrate an
imminent danger of serious physical injury. Broadly, the
government argues that only three of the alleged assaults are
relevant—and as a matter of law, three assaults do not place a
prisoner under an imminent danger of serious physical injury.
7
More narrowly, the government argues that the two inmates
who are alleged to have assaulted Mr. Gorbey do not pose an
imminent threat of serious physical injury. That is because, at
the time his appeal was noticed, Mr. Gorbey was no longer
forced to live with either alleged assailant. And as to
specifically one of the alleged assailants, the government
argues that the past assaults did not result in “fractures, []
injuries to the soft tissues, [] no[r] damage to his sinuses or
other structures,” therefore, Mr. Gorbey cannot show a serious
physical injury. Government Br. at 41. The government does
not respond to Mr. Gorbey’s allegation that prison officials
coordinated these attacks.
B.
In the 1990s, Congress “established new standards for []
grant[ing] IFP status to prisoners, as opposed to other litigants”
in response to floods of “meritless” lawsuits filed by federal
prisoners proceeding IFP. See Chandler v. D.C. Dep’t of Corr.,
145 F.3d 1355, 1356 (D.C. Cir. 1998). A few of the PLRA’s
unique standards are relevant here.
First, unlike other indigent persons whose filings are free,
the PLRA requires indigent federal prisoners “to pay the full
amount of [the] filing fees” in installments. 28 U.S.C.
§ 1915(b)(1)–(2). Second, under the PLRA, IFP status is
limited to prisoners who have not had three “or more
. . . action[s] or appeal[s] . . . dismissed . . . [as] frivolous,
malicious, or [for] fail[ure] to state a claim upon which relief
may be granted.” 28 U.S.C. § 1915(g). After the third
frivolous, malicious, or failure to state a claim dismissal, a
prisoner must pay the full filing fee to proceed with a civil
action or appeal, even if they are indigent. Id. In other words,
after a prisoner receives the proverbial “third strike,” all future
filing fees become payable in full upfront, else the civil action
8
or appeal be dismissed. See Bruce v. Samuels, 577 U.S. 82,
85–86 (2016). The PLRA includes an exception: an indigent
prisoner with three strikes may nonetheless proceed IFP if “the
prisoner is under imminent danger of serious physical injury.”
28 U.S.C. § 1915(g).
Finally, the PLRA makes clear that courts should not
entertain meritless actions “[n]otwithstanding any filing fee, or
any portion thereof, that may have been paid.” 28 U.S.C.
§ 1915(e)(2). Courts “shall dismiss the case at any time if the
court determines that the allegation of poverty is untrue; or the
action or appeal is frivolous or malicious; fails to state a claim
on which relief may be granted; or seeks monetary relief
against a defendant who is immune from such relief.” Id.
II.
The District Court had federal question jurisdiction under
28 U.S.C. § 1331, and its dismissal of Mr. Gorbey’s complaint
and request to proceed IFP was a final judgment. We have
jurisdiction under 28 U.S.C. § 1291 and review the District
Court’s dismissal de novo. Ladeairous v. Sessions, 884 F.3d
1172, 1174 (D.C. Cir. 2018).
We use “traditional standards applicable to pleadings by
pro se prisoners” when evaluating allegations used to establish
an imminent danger of serious physical injury. Mitchell v. Fed.
Bureau of Prisons, 587 F.3d 415, 421 (D.C. Cir. 2009). The
“factual allegations” must be “sufficiently specific for us to
infer” the “actual existence” of an imminent threat, id., “both
at the time [the prisoner] file[s] their lawsuit and at the time
they notice their appeal,” Pinson II, 964 F.3d at 69.
Additionally, the movant’s filings must “demonstrate a nexus
between the harms [] allege[d] and the claims [brought].” Id.
at 71.
9
Before we can evaluate Mr. Gorbey’s allegations of
imminent danger of serious physical injury, we must resolve
two issues that relate to the nature of our review.
The first issue is clear from the briefing: the government
argues that we can consider information that rebuts the
prisoner’s allegations of imminent danger, but the court-
appointed Amicus in support of Mr. Gorbey’s motion disagrees.
In Amicus’s view, Section 1915(g) does not permit an
adversarial evidentiary inquiry, in part, because appellate
courts are ill-equipped to resolve the inevitable evidentiary
disputes that would result from the government’s rule.
We agree with the government. Even prior to the passage
of the PLRA, Section 1915 was “designed largely to discourage
the filing of, and waste of judicial and private resources upon,
baseless lawsuits that paying litigants generally do not initiate
because of the costs of bringing suit and because of the threat
of sanctions for bringing vexatious suits under Federal Rule of
Civil Procedure 11.” Neitzke v. Williams, 490 U.S. 319, 327
(1989). Accordingly, the statute grants courts “the unusual
power to pierce the veil of [a] complaint’s factual allegations.”
Id. And where the veil is pierced, we must reject “factual
contentions [that] are clearly baseless.” Id. Though Amicus
correctly notes that courts of appeal usually do not resolve
factual disputes, we have already explained that “Congress can,
and in the PLRA did, assign atypical roles to courts in
particular circumstances.” Pinson II, 964 F.3d at 70. Since this
atypical role allows us to consider the movant’s “imminent-
danger allegations newly offered on appeal,” it follows that we
may also consider the government’s rebuttals, or simply take
judicial notice of relevant facts. Id. Indeed, it would be odd to
order the government to respond to Mr. Gorbey’s allegations,
only to ignore the government’s rebuttals—especially those
10
that may tend to show that Mr. Gorbey’s assertions are “clearly
baseless.”
That said, judicial notice is not a one-way street. In this
case, the government urges us to look to past cases dismissing
Mr. Gorbey’s IFP motions alleging similar facts. Fair enough.
But that also means we can take judicial notice of government
reports about the state of USP Thompson in 2022, when Mr.
Gorbey alleges that USP Thompson officials placed him in
imminent danger by denying him necessary medical treatment.
See Fed. R. Evid. 201(b); Fed. R. Evid. 803(8); see also
Williams v. Lew, 819 F.3d 466, 473 (D.C. Cir. 2016) (taking
judicial notice of a government report).
In one such report, the Bureau of Prisons “acknowledged
significant concerns with the institutional culture at USP
Thompson and a lack of compliance with its own policies.”
OFFICE OF THE INSPECTOR GENERAL, U.S. DEP’T OF JUST.,
STATEMENT OF MICHAEL E. HOROWITZ BEFORE THE U.S.
SENATE COMMITTEE ON THE JUDICIARY: EXAMINING AND
PREVENTING DEATHS OF INCARCERATED INDIVIDUALS IN
FEDERAL PRISONS (2024) at *3, https://perma.cc/P9AW-
WDC5. Further, in June 2022, a period where Mr. Gorbey
alleges that he was denied needed medical treatments, USP
Thompson “had not had an on-site full time Staff Physician for
over a year and nearly half of its 12 nursing positions were
vacant … this led to longer wait times for inmates to receive
medical attention.” OFFICE OF THE INSPECTOR GENERAL,
EVALUATION OF ISSUES SURROUNDING INMATE DEATHS IN
FEDERAL BUREAU OF PRISONS INSTITUTIONS (2024) at *66,
https://perma.cc/YST4-AEVR. In sum, notwithstanding Mr.
Gorbey’s past frivolous lawsuits and the past court rulings that
he was not in imminent danger of serious physical injury, these
government reports lend credence to his allegations regarding
11
USP Thompson’s failure to provide necessary medical
treatment for his glaucoma as of August 2022.
The second issue as to the nature of our review flies under
the radar and was not briefed: When was Mr. Gorbey’s appeal
noticed? Though both parties advance arguments under our
well-established rule that “the conditions prisoners faced at the
time of noticing their appeals determine their eligibility to
proceed,” Pinson II, 964 F.3d at 69, the parties use different
dates when making these arguments. The government’s brief
frames its case using September 20, 2022, as the relevant date
because that is when we docketed the case, Government Br. at
13; however, Amicus states that August 30, 2022, is the
relevant date because that is when Mr. Gorbey dated his filings
and, we can infer, the date that Mr. Gorbey asked prison
officials to send his filings to this Court, Amicus Reply at 20.
The date that Mr. Gorbey’s appeal was noticed is critical
to our disposition here because there is a factual dispute as to
whether Mr. Gorbey ever saw an ophthalmologist. The
government does not dispute that, as of August 30, 2022, Mr.
Gorbey had not seen an ophthalmologist in eighteen months.
J.A. 40–41, 116–17. But Mr. Moisant’s affidavit states that Mr.
Gorbey “had an external ophthalmology consult, which
included detailed testing, imaging, and scans of his eyes,
updates to his diagnosis, and a review of his medications” on
September 1, 2022—two days after Mr. Gorbey presumably
left his filings with USP Thompson officials, but nineteen days
before we docketed his appeal. J.A. 103. Because Mr.
Moisant’s affidavit is reasonably detailed and specific it is
entitled the “presumption of regularity,” under which “courts
presume” that public officers have “properly discharged their
official duties” unless there is “clear evidence to the contrary.”
United States v. Chemical Found., 272 U.S. 1, 14–15 (1926).
Still, Mr. Gorbey asks us to accept his assertion that this
12
September 1, 2022, consult took place with an optometrist—
not an ophthalmologist. J.A. 40–41.
Luckily, we need not determine whose assertion carries the
day. That is because, as the parties recognize, post-filing
developments exceed the scope of our Section 1915(g) inquiry
with respect to whether Mr. Gorbey must pay the full filing fee
to bring his complaint and notice his appeal. Pinson v.
Samuels, 761 F.3d 1, 5 (D.C. Cir. 2014) (Pinson I). And it is
well-established that we determine the date of a pro se
prisoner’s filings under the mailbox rule. See Anyanwutaku v.
Moore, 151 F.3d 1053, 1057 (D.C. Cir. 1998). Under the
mailbox rule, a pro se prisoner’s appeal is noticed on the day
that the prisoner delivers their papers to prison authorities for
forwarding to the court. Houston v. Lack, 487 U.S. 266, 270
(1988). Applying that rule here, Mr. Gorbey’s appeal was
noticed on August 30, 2022, thus all post-August 30, 2022,
developments exceed the scope of our inquiry. See Pinson I,
761 F.3d at 5. (As discussed further below, we have no need
to decide, and express no views on, whether the court can
revoke the IFP status of a prisoner and order him to pay any
subsequent fees or costs based on post-filing developments that
show he is no longer in imminent danger of serious physical
injury.)
It makes good sense to apply the mailbox rule in this
context. As Houston v. Lack explained, the mailbox rule
applies to a pro se prisoner’s filing date because they “cannot
take the steps other litigants can take to monitor the processing
of their notices of appeal and to ensure that the court clerk
receives and stamps their notices of appeal.” 487 U.S. at 270–
71. Nor do they have “lawyers who can take [the necessary]
precautions for them.” Id. at 271. Indeed, pro se prisoner
litigants sit in a uniquely vulnerable position, left with “no
choice but to entrust the forwarding of [their] notice of appeal
13
to prison authorities whom [they] cannot control or supervise
and who may have every incentive to delay.” Id.
This concern could not be more applicable to pro se
prisoner litigants who are “[u]nskilled in law, unaided by
counsel, and unable to leave prison,” and seek to proceed IFP
under the three-strikes exemption. Houston, 487 U.S. at 271.
It is also consistent with how we have already construed the
three-strike exemption’s text—“the statute’s temporal
reference point [is] the initial act of bringing a lawsuit.” Pinson
I, 761 F.3d at 5. For all intents and purposes, pro se prisoners
bring their lawsuit when they “lose control over and contact
with their notices” by delivering their papers to “prison
authorities.” Houston, 487 U.S. at 275. And if ever there were
a dispute as to when a pro se prisoner leaves their papers with
prison authorities, prisons “have well-developed procedures
for recording the date and time at which they receive papers for
mailing and [] can readily dispute a prisoner’s assertions that
he delivered the paper on a different date.” Id.
Having resolved the relevant issues bound up in our
standard of review, we now turn to Mr. Gorbey’s arguments
that he is under imminent danger of serious physical injury.
A.
We start with Mr. Gorbey’s argument that his worsening
glaucoma places him under an imminent danger of serious
physical injury. As to the sufficiency of Mr. Gorbey’s filings,
we find no reason to disregard the parties’ agreement that Mr.
Gorbey includes sufficiently specific facts allowing for an
inference that he is at serious risk of losing his eyesight—a
serious physical injury. We instead focus on the parties’
disagreement: Does Mr. Gorbey demonstrate a nexus between
the harms alleged in his filings and the claims that he brings?
Pinson II, 964 F.3d at 71. And on this question, the parties
14
disagree on both the law (what is the right standard?) and the
facts (are the allegations in Mr. Gorbey’s filings sufficient?).
In Pinson II, we explained that the three-strikes exemption
effectuates the PLRA’s goal “to filter out the bad claims and
facilitate consideration of the good . . . by imposing more
onerous burdens on prisoner-litigants that have thrice been
bounced from court.” 964 F.3d at 71. This provision, Pinson
II continued, “is designed to provide a safety valve for the three
strikes rule, permitting an indigent three-strikes prisoner to
proceed IFP in order to obtain a judicial remedy for an
imminent danger.” Id. (quoting Pettus v. Morgentahu, 554
F.3d 293, 297 (2d. Cir. 2009) (cleaned up)) (emphasis in
original). Accordingly, we held that “prisoners must
demonstrate a nexus between the harms they allege and the
claims they bring.” Id. Pinson II did not, however, articulate
the standard that prisoner-litigants must meet to demonstrate
the nexus between their alleged harms and claims brought.
Since Pinson II, the circuits have split on the nexus test.
Compare Pettus, 554 F.3d at 297 with Hall v. United States, 44
F.4th 218, 231 (4th Cir. 2022). The government asks us to
adopt the Second Circuit’s test that mimics “ordinary standing
rules,” i.e., the prisoner-litigant’s complaint must “seek to
redress an imminent danger of serious physical injury and that
this danger must be fairly traceable to a violation of law alleged
in the complaint.” Pettus, 554 F.3d at 297. Amicus counters
that the Fourth Circuit’s approach—requiring traceability, but
not redressability—is the better test. See Hall, 44 F.4th at 231–
32. We need not weigh in on the split because Mr. Gorbey’s
allegations regarding his worsening glaucoma satisfy both
standards.
Under the Fourth Circuit’s traceability-only test, Mr.
Gorbey easily wins: his worsening glaucoma is fairly traceable
15
to the unrebutted allegation that he has not seen an
ophthalmologist while at USP Thompson. Tellingly, the
government did not offer a counterargument to Mr. Gorbey’s
contention that his allegations meet this test.
Under the Second Circuit’s redressability standard, the
government’s briefing fails to respond to the crux of Mr.
Gorbey’s position: USP Thompson officials have not allowed
him to visit an ophthalmologist even though they are well-
aware of his rapidly worsening glaucoma. Instead, the
government’s primary argument focuses solely on Mr.
Gorbey’s requests to use medical marijuana to treat his
worsening glaucoma. Of course, we have no authority to grant
such relief. And if this were all Mr. Gorbey requested, the
government would prevail. But that is not all Mr. Gorbey
seeks, in fact, his requests to see an ophthalmologist are just as
clear as his request for medical marijuana. 1 The government’s
decision to ignore this argument is quite curious.
At best, the government argues that Mr. Gorbey “does not
want any of the other treatment he would be offered or that he
would receive.” Government Br. at 38. And for support, the
government directs us to Mr. Moisant’s declaration, that states
Mr. Gorbey has twice rejected eye surgery, J.A. 104, as well as
a 2019 court decision from the United States District Court of
1
The dissent mischaracterizes Mr. Gorbey’s statement that he is in
imminent danger of blindness from glaucoma due to his lack of
marijuana alone. Dissenting Op. at 1. Instead, Mr. Gorbey contends
that the lack of treatment he has had has caused his glaucoma to
progress. Motion to Stay at 11 (Sept. 15, 2023). Additionally, Mr.
Gorbey has stated that he was denied glaucoma medication and
access to ophthalmological care. J.A. 10; J.A. 41.
16
Maryland that discusses Mr. Gorbey’s refusal to receive eye
surgery, Gorbey, 2019 WL 5593284 at * 5.
This response stretches the redressability requirement too
far: the question is whether the prisoner can “obtain a judicial
remedy,” not whether the prisoner will hypothetically accept
the relief to which they are entitled. Pettus, 554 F.3d at 297.
And the government does not dispute that Mr. Gorbey can
obtain an injunction that allows him to visit with an
ophthalmologist. Whether Mr. Gorbey will accept an
ophthalmologist’s recommendation(s) in the future is not our
business. By the same token, the fact that he was
uncomfortable with a surgery five years ago is similarly
irrelevant. 2 What matters is, as of the date he noticed his appeal
(and filed his complaint), Mr. Gorbey adequately alleges that
his worsening glaucoma places him under an imminent danger
of physical injury, and USP Thompson officials have not
allowed him to visit an ophthalmologist.
All agree that visiting with an ophthalmologist is a
legitimate request given the worsening state of Mr. Gorbey’s
glaucoma. Therefore, his request establishes the necessary
nexus to the claims brought, and he is entitled to proceed IFP
under the three-strikes exemption. Accordingly, we need not
consider his arguments as to repeated prison assaults. See, e.g.,
Ibrahim v. Dist. of Columbia, 463 F.3d 3, 7 (D.C. Cir. 2006)
(granting motion to proceed IFP based on one of two
allegations of imminent physical injury); see also Chavis v.
Chappius, 618 F.3d 162, 171 (2d Cir. 2010) (“Nothing in the
text of § 1915 provides any justification for dividing an action
2
It is not our place, particularly at the threshold stage of deciding IFP
status, to opine or make factual findings on what future treatments
Mr. Gorbey will accept, contrary to the dissent’s belief that
“marijuana [is the] ‘only’ remedy he will accept.” Dissenting Op. at
2.
17
into individual claims and requiring a filing fee for those that
do not relate to imminent danger.”).
B.
Even though we hold that Mr. Gorbey demonstrates an
imminent danger of serious physical injury, and therefore can
proceed IFP under the three-strikes exemption, our inquiry is
not complete. The PLRA contemplates dismissal of “any
portion of the complaint” that “is frivolous” as part of the
screening function. 28 U.S.C. § 1915A(b)(1); see also
Ciarpaglini v. Saini, 352 F.3d 328, 331 (7th Cir. 2003). And
just as we are attuned to Mr. Gorbey’s allegations that the
continued denials of medical treatment for his worsening
glaucoma place him under an imminent threat of serious
physical injury, we recognize that Mr. Gorbey’s complaint
includes far-fetched allegations that must be forcefully
rejected.
Specifically, Mr. Gorbey alleges that federal judges, the
Senate Judiciary Committee, and the President and Vice
President are all in cahoots to prevent him from filing lawsuits.
One judge, Mr. Gorbey’s filings state, rejected his motion to
proceed IFP under the three-strikes exception and, in so doing,
insinuated that he has no access to court, ever. J.A. 16. Mr.
Gorbey describes two other courts, that also denied his IFP
motions, as “hostile” “clown houses posing as court houses.”
J.A. 20. And while “Cho-mo-Joe Biden” and “C. Harris
President and Vice President from stolen elections” are not
listed as defendants, Mr. Gorbey alleges that they are also in on
the plot. J.A. 21.
These allegations are clearly frivolous. Therefore, we
dismiss Mr. Gorbey’s claims against the United States
Attorney General, the Director of the Administrative Office of
Federal Courts, and the United States Senate Judiciary
18
Committee. Mr. Gorbey’s allegations of their concerted effort
to abridge his right to access federal courts are “clearly
baseless.” Neitzke, 490 U.S. at 327.
III.
In closing, we want to make the limitations of our holding
clear. Mr. Gorbey is entitled to “bring a civil action or appeal
a judgment” IFP because he “is under imminent danger of
serious physical injury.” 28 U.S.C. § 1915(g) (emphasis
added). This action is limited to the claims against Captain
Avery and the Director of the Federal Bureau of Prisons. In
most plain terms, this means that Mr. Gorbey’s complaint will
be docketed, and he can pay his filing costs in installments. 28
U.S.C. § 1915(b).
But we express no views on whether proceeding IFP under
the three strikes exemption can be revoked if circumstances
change as the prisoner maintains their action. Section
1915(g)’s text and our holdings make clear that an indigent
prisoner who is in imminent danger at the time of filing may
bring their action or appeal and pay the filing fee in
installments. Pinson I, 761 F.3d at 5 (Section 1915(g) is “a
mere screening device” to determine whether the prisoner is
under imminent danger “when he brings his action.”) (cleaned
up). However, the granting of IFP status confers additional
benefits after the prisoner makes his initial installment payment
towards the filing fee, including appointment of counsel at the
court’s discretion and the printing of the record, printing of
transcripts, and service of process at government expense. See
28 U.S.C. § 1915(c)–(d); see also Rowland v. Cal. Men’s
Colony, 506 U.S. 194, 198 (1993).
Therefore, we leave open an important question that the
government raised in its briefing: Are courts free to revoke IFP
status, initially granted on being placed under an imminent
19
threat of serious physical injury, if circumstances change? See
Government Br. at 27–28. Asked differently, does Section
1915(g) cover the entire proceeding based on the initial
imminent danger finding or does it simply ensure that the
prisoner who is under an imminent danger is not blocked at the
courthouse’s doors? Our circuit case law does not provide a
clear answer.
On one hand, we have recognized that courts have
“discretionary authority to deny IFP status to prisoners” under
the PLRA and “our more general supervisory authority to
manage our docket so as to promote the interests of justice.”
Butler v. Dep’t of Just., 492 F.3d 440, 445 (D.C. Cir. 2007).
And, as a matter of procedure, district courts in our circuit and
elsewhere have consistently revoked previously granted IFP
status upon learning new information about the financial status
of the parties as the case unfolds. See Matthews v. Fed. Bureau
of Investigation, 251 F. Supp. 3d 257, 264 (D.D.C. 2017)
(collecting cases); Cf. Carter v. Telectron, Inc., 752 F. Supp.
939 (S.D. Tex. 1976) (revoking a previous motion granting IFP
after a change in financial circumstances in the non-prisoner
context).
On the other hand, we have recognized that the three-
strikes exemption plays an important role in easing “any
constitutional tension that might result from denying access to
the courts to prisoners facing life-threatening conditions.”
Mitchell, 587 F.3d at 420. In some cases, revoking IFP status
could result in the dismissal of a case brought to vindicate a
fundamental constitutional right; in such a case, there would be
a question whether the dismissal unconstitutionally restricts the
indigent prisoner’s right to access the courts. See Thomas v.
Holder, 750 F.3d 899, 909 (D.C. Cir. 2014) (Tatel, J.,
concurring).
20
We have no reason to answer this complicated question
here as Mr. Gorbey’s IFP status was never revoked. We simply
recognize that the issue may need to be addressed in the future
and provide notice to the parties of a few difficult questions
that ought to be considered.
So ordered.
WALKER, Circuit Judge, concurring in part and dissenting in
part:
Michael Gorbey is a federal prisoner. The government
provides him with extensive medical care.1 In the past, it has
also offered Gorbey additional care that he refused.2
Gorbey has filed “scores” of lawsuits from prison.3 His
“abusive litigating methods display a complete disregard for
court decorum” and a “commitment to frivolously filing
cases.”4 Because of that history, Gorbey must pay the court’s
full filing costs up front, unless he “is under imminent danger
of serious physical injury.”5 The district court decided that
Gorbey does not qualify for that “imminent danger” exception.
On appeal, Gorbey alleges that he is in “imminent danger”
of blindness from glaucoma because his prison won’t let him
smoke marijuana.6 Before his incarceration, he “smoke[d]
1
See JA 107 (“Between May 9 and December 8, 2022, Gorbey’s
electronic medical records show no less than 20 discrete clinical
encounters, which show regular treatment for glaucoma” and other
ailments.).
2
See Gorbey v. Mubarek, No. 19-220, 2019 WL 5593284, at *3-5
(D. Md. Oct. 30, 2019); see also JA 72 (Gorbey’s doctor: “I fear that
Inmate Gorbey’s past actions regarding his eye care have profoundly
contributed to this poor prognosis.”).
3
See Pinson v. United States Department of Justice, 964 F.3d 65, 72
(D.C. Cir. 2020).
4
Gorbey v. United States, No. 22-50330, 2022 WL 22298309, at *2
(N.D. Ill. Nov. 28, 2022).
5
28 U.S.C. § 1915(g); see also Pinson, 964 F.3d at 72.
6
See Pinson, 964 F.3d at 71 (Because “an indigent prisoner with a
history of filing frivolous complaints could, by merely alleging an
imminent danger, file an unlimited number of lawsuits, paying no
filing fee,” prisoners must show “a nexus between the harms they
2
marijuana all his life.”7 During that time, according to Gorbey,
“his eyes became dependent on marijuana.”8
In his filings, Gorbey repeatedly and emphatically
attributes his declining eyesight to the interruption of his
marijuana habit, while insisting that the government must
provide him with marijuana — the “only” remedy he will
accept:9
• Gorbey wrote on his medical records that he “need[s]
medical marijuana” because surgery “fail[ed]” and
“pills & eye drops” have “not help[ed].”10
• Gorbey says “now only medical marijuana is safe &
effective for Gorbey to use while eye drops & pills
don’t help him & only cause other” medical
problems.11
• Gorbey says when he was “deprived of marijuana it
(caused) him to develop glaucoma.”12
• Gorbey says the “progressing extensive damages to
both of [his] eyes” are “due to denials of marijuana.”13
allege and the claims they bring” to proceed in forma pauperis under
the imminent danger exception. (cleaned up)).
7
Motion to Stay at 12 (Sept. 15, 2023).
8
Id.
9
Id. at 11.
10
Response to Show Cause Order at 43 (Dec. 13, 2022) (emphasis in
original).
11
Motion to Stay at 11 (Sept. 15, 2023) (emphasis added).
12
Id. at 12 (parenthetical in original) (emphasis added).
13
Id. at 20 (emphasis added).
3
• Gorbey says that when he was “deprived of
marijuana . . . he develope[d] glaucoma as a result.”14
• Gorbey argues he satisfies the imminent danger
exception because of his “advancing glaucoma &
[his] single personal medical (need) for marijuana!”15
• Gorbey repeatedly writes “because I’m den[ied]
marijuana” on medical records showing his worsening
glaucoma.16
• Gorbey describes himself as “not a good surgical
candidate” and self prescribes a “need [for] medical
marijuana.”17
Those claims are frivolous. Medical professionals say that
marijuana is not an effective treatment for glaucoma.18 Plus,
“we have no authority to grant such relief.”19 So Gorbey has
not shown the required “nexus between the harms [he] allege[s]
14
Appellant Br. at 3 (Sept. 26, 2023) (emphasis added).
15
Id. at 11 (parenthetical in original) (emphasis added).
16
Gorbey Pro Se Appendix at 1, 2, 5 (Sept. 27, 2023) (emphasis
added).
17
Gorbey Pro Se 28j Letter at 1 (June 3, 2024) (first emphasis in
original, second emphasis added).
18
See David Turbert & Dan Gudgel, Does Marijuana Help Treat
Glaucoma or Other Eye Conditions, American Academy of
Ophthalmology (Dec. 13, 2023), https://perma.cc/D697-Y7JD;
Kathryn E. Bollinger, M.D. & Kevin M. Halenda, M.D., Should You
Be Using Marijuana to Treat Your Glaucoma, Glaucoma Research
Foundation (Jan. 10, 2019), https://perma.cc/Q9JC-WX5Y; Henry
Jampel, M.D., M.H.S., Position Statement on Marijuana and the
Treatment of Glaucoma, American Glaucoma Society (Aug. 10,
2009), https://perma.cc/4ANB-XSUK.
19
Majority Op. at 15.
4
and the claims [he] bring[s].”20 He has not plausibly alleged
the cause of an imminent danger;21 nor has he sought “to
redress an imminent danger . . . fairly traceable to a violation
of law.”22
The majority agrees that “Gorbey believes that he now
needs medical marijuana.”23 And it agrees that if marijuana is
“all Mr. Gorbey requested, the government would prevail.”24
But according to the majority, “that is not all Mr. Gorbey
seeks.”25
I respectfully disagree. Gorbey provides little reason to
believe he blames his worsening glaucoma on anything other
than the absence of marijuana, nor is he willing to accept
anything but what he calls the “only . . . safe & effective”
treatment.26 I would take Gorbey at his word, buttressed by his
refusal to accept the corrective surgery that has already been
recommended “twice.”27 Though Gorbey now “requests to see
20
Pinson, 964 F.3d at 71.
21
See Majority Op. at 14 (the Fourth Circuit’s nexus test requires
“traceability, but not redressability”).
22
See id. (quoting without adopting the Second Circuit’s nexus test)
(emphasis added).
I agree with the majority that we “need not weigh in on the split”
between the Second and Fourth Circuits. Id.
23
Id. at 4 (citing JA 75).
24
Id. at 15.
25
Id.; see also id. at 6 (majority stating marijuana is not “the only
treatment that Mr. Gorbey will accept”).
26
Motion to Stay at 11 (Sept. 15, 2023); see also infra pp. 2-3.
27
JA 104 (“Gorbey twice declined eye surgery in 2019 to address his
worsening glaucoma”).
5
an ophthalmologist” again,28 he is not seeking an
ophthalmologist to provide ophthalmology care — he is
seeking an ophthalmologist “only” to provide marijuana.29
Therefore, I respectfully dissent from the majority’s
decision allowing Gorbey to proceed without the full payment
of his filing fee.30
28
Majority Op. at 15.
29
Motion to Stay at 11 (Sept. 15, 2023); see, e.g., Gorbey Pro Se 28j
Letter at 1 (June 3, 2024) (Gorbey reiterating in his most recent filing
that he believes he is “not a good surgical candidate” so he “need[s]
medical marijuana” (emphasis in original)).
Even if a few of Gorbey’s (many) filings contradict the very basis
of Gorbey’s suit — that the denial of marijuana is his condition’s
only cause, and marijuana is the only acceptable remedy — it seems
curious to reward Gorbey for his filings’ internal inconsistencies. Cf.
Appellant Reply Br. at 13 (“[T]his entire litigation is not to just
obtain weed!”). If anything, those inconsistencies just undermine his
credibility. After all, if “we can consider information that rebuts the
prisoner’s allegations of imminent danger” when it is offered by the
government — and I agree with the majority that we can — then we
can also consider statements by the prisoner that rebut his own
claims. Majority Op. at 9.
30
I concur with the majority’s decision to dismiss Gorbey’s claims
“that federal judges, the Senate Judiciary Committee, and the
President and Vice President are all in cahoots to prevent him from
filing lawsuits.” Majority Op. at 17.