concluding, for purposes of determining whether plaintiff met the “imminent danger” exception to the Prison Litigation Reform Act’s three-strikes provision, that “failure to provide adequate treatment for Hepatitis C, a chronic and potentially fatal disease, constitutes ‘imminent danger.’”
How later courts described this case
- concluding, for purposes of determining whether plaintiff met the “imminent danger” exception to the Prison Litigation Reform Act’s three-strikes provision, that “failure to provide adequate treatment for Hepatitis C, a chronic and potentially fatal disease, constitutes ‘imminent danger.’”
- holding that “failure to provide adequate treatment for Hepatitis C, a chronic and potentially fatal disease, constitutes ‘imminent danger’”
- 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
- stating that, for a claim of medical indifference, a plaintiff “must first prove exposure to a substantial risk of serious harm”
Written by the judges who cited it.
The opinion
United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued May 5, 2006 Decided September 8, 2006
No. 05-5370
JIBRIL L. IBRAHIM
APPELLANT
v.
DISTRICT OF COLUMBIA, ET AL.,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 05cv00051)
Alexander D. Chinoy, appointed by the court, argued the
cause as amicus curiae in support of appellant. With him on the
briefs was Anthony F. Shelley, appointed by the court.
Jibril L. Ibrahim, appearing pro se, filed appellant’s briefs.
Alan Burch, Assistant U.S. Attorney, argued the cause for
appellees. With him on the brief were Kenneth L. Wainstein,
U.S. Attorney, and Michael J. Ryan, Assistant U.S. Attorney.
Before: HENDERSON, ROGERS and GRIFFITH, Circuit
Judges.
Opinion for the Court filed by Circuit Judge GRIFFITH.
2
GRIFFITH, Circuit Judge: Jibril L. Ibrahim, who is serving
a life sentence in a federal penitentiary, filed a pro se suit against
the District of Columbia, the United States, and federal prison
authorities claiming they denied him adequate medical treatment
for Hepatitis C and prostate cancer. Ibrahim appeals the District
Court’s dismissal of his claims on the grounds of res judicata
and lack of federal subject matter jurisdiction. We reverse in
part the District Court’s order and remand for proceedings
consistent with this opinion. We also grant Ibrahim leave to
appeal in forma pauperis.
I.
In 1988, Ibrahim was convicted in the District of Columbia
for Assault with Intent to Commit Rape While Armed, Burglary I
While Armed, and Assaulting, Resisting, or Interfering with an
Officer with a Dangerous Weapon. He is currently in a federal
penitentiary because the Federal Bureau of Prisons is responsible
for the “custody, care, [and] treatment” of felons sentenced
pursuant to the D.C. Code. See National Capital Revitalization
and Self-Government Improvement Act of 1997, Pub. L. No.
105-33, § 11201, 111 Stat. 251, 734 (1997). Since his
incarceration, Ibrahim has filed approximately 138 civil claims
in federal court. Ibrahim’s “profuse and meritless filings”
prompted the United States District Court for the District of
Columbia to issue an injunction in 1993 prohibiting him from
filing further suits without first obtaining the District Court’s
approval. Anderson v. D.C. Pub. Defender Svc., 881 F. Supp.
663, 670 (D.D.C. 1995). To receive such approval, the District
Court’s order requires Ibrahim to demonstrate that his claim is in
good faith and not frivolous, has a tenable basis, and is not
precluded by previous suits. Id. at 666.
3
In 2004, Ibrahim requested leave of the District Court to
bring suit, alleging that the District of Columbia failed to treat
his prostate cancer in violation of 42 U.S.C. § 1983, the Eighth
Amendment of the United States Constitution, the “common law
of the District of Columbia,” and the Americans with Disabilities
Act (the “ADA”), 42 U.S.C. § 12101 et seq. The District Court
granted leave to file suit, but ultimately dismissed Ibrahim’s
complaint because it improperly sought to hold the District of
Columbia liable for alleged misconduct by officials of the
Federal Bureau of Prisons.
A year after the District Court dismissed that claim, Ibrahim
sought permission to bring suit again, this time against not only
the District of Columbia, but also the United States and federal
prison authorities. Ibrahim alleged that each had failed to
properly treat his prostate cancer and, he now alleged, his
Hepatitis C infection. The District Court granted permission to
bring suit and allowed Ibrahim to pursue his claims in forma
pauperis in that forum.
That suit, which is now before us, claims violations of the
ADA, the Eighth Amendment, and 42 U.S.C. § 1983. The
gravamen of Ibrahim’s new allegations is that the defendants
have failed to provide him adequate medical treatment for
Hepatitis C, which has damaged his liver and placed him at
heightened risk of other injuries and even death. Ibrahim also
alleges a smorgasbord of wrongdoings by the defendants. He
alleges they have denied him access to justice and various prison
benefits, confiscated his religious headgear, refused him a winter
coat and an appropriate mattress, and failed to mitigate assaults
against him by prison personnel.
The District of Columbia moved to dismiss his complaint,
arguing that the 2004 dismissal barred all of Ibrahim’s claims
under res judicata. The federal defendants filed a separate
4
motion challenging Ibrahim’s in forma pauperis status. The
District Court agreed with the District that Ibrahim’s claims were
barred by res judicata and granted the District’s motion to
dismiss. It dismissed sua sponte Ibrahim’s claims against the
federal defendants, concluding he had failed to state a valid claim
under the ADA, which the Court viewed as the sole basis for
federal jurisdiction.
Ibrahim appealed the dismissal of all but his ADA claim and
paid $100, less than half of the $255 fee required to file a notice
of appeal. The Clerk ordered Ibrahim to show cause why his
appeal should not be dismissed for failure to pay the filing fee.
In response, Ibrahim argued that he qualified to appeal in forma
pauperis because he was “under imminent danger of serious
physical injury.” 28 U.S.C. § 1915(g). We discharged the Order
to Show Cause, appointed amicus curiae to represent the pro se
litigant’s interests, and directed the parties to address both the
merits of Ibrahim’s appeal and whether he should be permitted
to appeal in forma pauperis.
Amicus argues that Ibrahim should be allowed to proceed in
forma pauperis before this Court because he is in imminent
danger of physical injury. In addition, amicus argues that the
District Court erred in dismissing Ibrahim’s complaint on res
judicata grounds and in failing to retain jurisdiction over his
other claims after dismissing the ADA claim.
II.
We begin with Ibrahim’s request to proceed in forma
pauperis before this Court, which we grant. Section 1915(g) of
the Prison Litigation Reform Act (the “PLRA”), 28 U.S.C.
§ 1915, bars a prisoner from proceeding in forma pauperis if “the
prisoner has, on 3 or more prior occasions, while incarcerated or
detained in any facility, brought an action or appeal in a court of
5
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). This section is referred
to as the “three strikes” rule. See Ibrahim v. District of
Columbia, 208 F.3d 1032, 1033 (D.C. Cir. 2000). “In enacting
the PLRA in 1996, Congress endeavored to reduce frivolous
prisoner litigation by making all prisoners seeking to bring
lawsuits or appeals feel the deterrent effect created by liability
for filing fees.” In re Smith, 114 F.3d 1247, 1249 (D.C. Cir.
1997) (citations and brackets omitted). Thus, “Congress enacted
the PLRA primarily to curtail claims brought by prisoners under
42 U.S.C. § 1983 and the Federal Tort Claims Act, most of
which concern prison conditions and many of which are
routinely dismissed as legally frivolous.” Id. (citation omitted).
The sole exception to the “three strikes” rule of § 1915(g) is
where the prisoner is “under imminent danger of serious physical
injury.” 28 U.S.C. § 1915(g).
Because Ibrahim has many more than the three strikes that
trigger the bar of § 1915(g), he cannot appeal in forma pauperis
unless he qualifies for the imminent danger exception. See id.
In determining whether he qualifies, we look to the complaint,
which we “construe liberally and the allegations of which we
must accept as true.” Brown v. Johnson, 387 F.3d 1344, 1350
(11th Cir. 2004); see also Warren v. District of Columbia, 353
F.3d 36, 37 (D.C. Cir. 2004) (“[P]ro se prisoner complaints
should be ‘liberally construed.’”) (citation omitted); Phillips v.
Bureau of Prisons, 591 F.2d 966, 969 (D.C. Cir. 1979) (We
“accept the truth of the well-pleaded factual allegations of the
complaint” in reviewing a facial dismissal.).
In his complaint, Ibrahim alleges that defendants have
“fail[ed] . . . and refus[ed] to treat” him with “possible
eradication treatment” for his Hepatitis C, placing him “in a
posture of serious physical injury or humiliating death and
6
suffering.” Amicus argues that these allegations satisfy the
“imminent danger” requirement.
We agree. The PLRA does not define the term “imminent
danger,” and we have not previously addressed whether
allegations of an ongoing injury, a recurring injury, or a pattern
of misconduct likely to produce imminent harm—the allegations
Ibrahim and his amicus press here—are sufficient to satisfy this
requirement. We need not resolve the precise contours of
“imminent danger” in this case because we think it clear that
failure to provide adequate treatment for Hepatitis C, a chronic
and potentially fatal disease, constitutes “imminent danger.”
Ibrahim has alleged that the lack of adequate treatment results in
“diminished liver function, damage, [and] fibrosis/cirrhosis,” and
that he is at risk for further liver damage, as well as “death, liver
and multiple organ failures, [and] sufferance.” Without adequate
treatment, Ibrahim will continue to suffer additional harm, if not
death, from his Hepatitis C. That surely is sufficient to constitute
“imminent danger.” See Ciarpaglini v. Saini, 352 F.3d 328, 330
(7th Cir. 2003); Ashley v. Dilworth, 147 F.3d 715, 717 (8th Cir.
1998).
Nor is there any doubt that Ibrahim is in danger of “a
serious physical injury,” as required by 28 U.S.C. § 1915(g).
The PLRA does not define this term, and we have not interpreted
its meaning in past cases, but we have no difficulty concluding
that a chronic disease that could result in serious harm or even
death constitutes “serious physical injury.” Other circuits have
found that similar allegations constitute a “serious physical
injury.” See, e.g., Brown, 387 F.3d at 1350 (“[T]he afflictions of
which Brown currently complains, including his HIV and
hepatitis, and the alleged danger of more serious afflictions if he
is not treated constitute imminent danger of serious physical
injury.”); Ciarpaglini, 352 F.3d at 330 (“[H]eart palpitations,
chest pains, labored breathing, choking sensations, and paralysis
7
in . . . legs and back” resulting from a denial of medication were
serious physical injury.); McAlphin v. Toney, 281 F.3d 709, 710
(8th Cir. 2002) (“[S]preading infection” in the mouth resulting
from lack of proper dental treatment was a serious physical
injury.).
Having determined that Ibrahim’s alleged danger is
“imminent,” and that the danger is that “of serious physical
injury,” we conclude that Ibrahim qualifies for the exception to
the “three strikes” rule. See 28 U.S.C. § 1915(g). Because there
is no dispute that Ibrahim otherwise qualifies, we grant him leave
to appeal in forma pauperis.
III.
We next turn to the District Court’s application of res
judicata, which we review de novo. See, e.g., Gilvin v. Fire, 259
F.3d 749, 756 (D.C. Cir. 2001). Under the doctrine of res
judicata, “a judgment on the merits in a prior suit bars a second
suit involving the same parties or their privies based on the same
cause of action.” Drake v. FAA, 291 F.3d 59, 66 (D.C. Cir.
2002) (quoting Parklane Hosiery Co. v. Shore, 439 U.S. 322,
326 n.5 (1979)). The District Court applied res judicata in the
present suit based on the 2004 suit and dismissed Ibrahim’s
claims against the District of Columbia because they “were fully
litigated and decided against him in the prior action.” Ibrahim v.
District of Columbia, Civ. No. 05-51, Mem. Op. at 3 (D.D.C.
Aug. 10, 2005).
The District Court properly dismissed Ibrahim’s claim
against the District of Columbia for failure to provide adequate
medical treatment for his prostate cancer because it is no more
than a reprise of his previous dismissal. It “involve[s] the same
parties” and is “based on the same cause of action” as Ibrahim’s
2004 suit. Drake, 291 F.3d at 66. Ibrahim’s claims in this case,
8
however, involve more than a cause of action based on his
prostate cancer. In his latest suit, Ibrahim seeks proper treatment
for Hepatitis C and raises a host of claims unrelated to his
prostate cancer, against not only the District of Columbia but
also federal defendants who were not parties to the 2004 suit.
Absent a showing of any relationship between these new claims
and Ibrahim’s previous prostate cancer claims, we must reverse
the District Court’s dismissal, with the exception of the dismissal
of his claims against the District of Columbia involving his
prostate cancer, and remand for further proceedings.1
The District Court concluded that Ibrahim’s claims against
the federal defendants should also be dismissed because they
could not be brought under the ADA. Ibrahim’s claims,
however, invoke federal question jurisdiction pursuant to several
statutes. For example, Ibrahim seeks to pursue several
constitutional claims pursuant to 28 U.S.C. § 1331. Although
claims can be dismissed for lack of federal subject matter
jurisdiction where they are “wholly insubstantial and frivolous,”
Bell v. Hood, 327 U.S. 678, 682-83 (1946), colorable claims are
not dismissed for lack of jurisdiction unless “Congress [has] . . .
rank[ed] a statutory limitation on coverage as jurisdictional,”
Arbaugh v. Y & H Corp., 126 S. Ct. 1235, 1245, ___ U.S. ___,
___ (2006). Because the District Court did not apply these
standards in dismissing Ibrahim’s claims for lack of jurisdiction,
we remand for the District Court to address them in the first
instance.
1
The federal defendants have not sought to invoke res
judicata based upon Ibrahim’s earlier suit against the District of
Columbia.
9
IV.
For the foregoing reasons, we grant Ibrahim leave to appeal
in forma pauperis, reverse in part the District Court’s dismissal
of his complaint, and remand the case for further proceedings
consistent with this opinion.
So ordered.