Mitchell v. Federal Bureau of Prisons

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued October 5, 2009 Decided November 20, 2009

No. 05-5420

RONALD MITCHELL,

APPELLANT

v.

FEDERAL BUREAU OF PRISONS,

APPELLEE

Appeal from the United States District Court

for the District of Columbia

(No. 05cv00512)

Sara Kaiser, Student Counsel, argued the cause as

amicus curiae in support of appellant. With her on the briefs

were Steven H. Goldblatt, appointed by the court, Cecily

Baskir and Charlotte Garden, Supervisory Attorneys, and

James E. Burke, Tony Diab and Prashina Gagoomal, Student

Counsel.

Ronald Mitchell, pro se, filed briefs.

Harry B. Roback, Assistant U.S. Attorney, argued the

cause for appellee. With him on the brief was R. Craig

Lawrence, Assistant U.S. Attorney.

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Before: TATEL and BROWN, Circuit Judges, and

WILLIAMS, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge TATEL.

TATEL, Circuit Judge: Challenging the conditions of his

incarceration, and having been denied in forma pauperis (IFP)

status by the district court, appellant now seeks to proceed

IFP on appeal. Although appellant has only two “strikes” and

thus faces no Prison Litigation Reform Act (PLRA) bar to IFP

status, we find that he qualifies as an abusive filer under

Butler v. Department of Justice, 492 F.3d 440 (D.C. Cir.

2007), in which we denied IFP status to a prisoner who,

though not technicaly barred by the PLRA, had nonetheless

abused the privilege. Also, even though we now recognize an

exception under Butler for prisoners who face imminent

danger of serious physical injury, appellant’s allegations are

insufficient to qualify for that exception. We therefore deny

his motion for IFP status on appeal.

I.

Ronald Mitchell is a twice-convicted bank robber

currently serving a fifteen-year sentence in the custody of the

Bureau of Prisons (BOP). Over the course of his tenure in the

prison system, he has been incarcerated in several different

penitentiaries and has filed at least sixty-five unsuccessful

lawsuits and appeals in the federal courts, virtually all of

which challenged the legality of his conviction and the

conditions of his confinement. This is one of those cases.

Proceeding under the Privacy Act, 5 U.S.C. § 552a,

Mitchell filed a complaint in federal court in March 2005,

alleging that his prison files omitted a required notation

regarding his need for protective custody. He claimed that

because of this omission, he was improperly transferred to

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USP Florence, a high-security prison in Colorado—his first

stay at a high-security facility. According to Mitchell, even

though BOP knew he had testified for the government against

his co-defendants and that USP Florence is “known for

murders and assaults on . . . anyone who has been known as a

snitch,” it transferred him there so that he would be

“murdered” by fellow prisoners. Compl. 3–4. In his request

for relief, Mitchell also asserted that he “need[s] medical

treatment for Hepatitis B & C which is incurable and

administered to plaintiff at USP Florence.” Compl. 8. He

sought transfer to protective custody, medical treatment, and

damages.

Mitchell filed a motion to proceed IFP in the district

court. The district court, finding that Mitchell had three

“strikes” within the meaning of the PLRA, 28 U.S.C. §

1915(g), denied the motion and later dismissed the complaint

for failure to pay the filing fee.

Challenging the district court’s denial of IFP status,

Mitchell now seeks to proceed IFP on appeal. His appellate

IFP motion has a long history in this court that we need not

recount here. Suffice it to say that in January 2009, we

appointed the Georgetown University Law Center Appellate

Litigation Clinic as amicus curiae to support Mitchell’s

position.

II.

The PLRA prohibits a prisoner who has accumulated

three or more “strikes” from proceeding IFP in any civil

action or appeal in federal court. 28 U.S.C. § 1915(g). A

strike is a civil “action or appeal [brought] in a court of the

United States” by the prisoner while incarcerated “that was

dismissed on the grounds that it is frivolous, malicious, or

fails to state a claim upon which relief may be granted.” Id.

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Amicus argues that Mitchell has only two strikes. BOP

contends he has at least three.

Having thoroughly reviewed Mitchell’s litigation history,

we agree with amicus. Mitchell has two strikes, both

complaints dismissed for failure to state a claim. See Mitchell

v. Dep’t of Justice, No. 1:06-cv-107 (N.D. W. Va. Nov. 11,

2006); Mitchell v. Hawk-Sawyer, No. 6:01-cv-3324 (W.D.

Mo. July 19, 2001). None of the other sixty-three cases

qualifies as a strike. They were either (1) dismissed or

disposed of, at least in part, for reasons other than being

“frivolous, malicious, or fail[ing] to state a claim upon which

relief may be granted,” see Thompson v. Drug Enforcement

Admin., 492 F.3d 428, 437 (D.C. Cir. 2007) (holding that the

only cases that count as strikes are those identified in the

statute), (2) habeas petitions, see Blair-Bey v. Quick, 151 F.3d

1036, 1039 (D.C. Cir. 1998) (holding that habeas cases are

not strikes), or (3) appellate affirmances of district court

dismissals rather than dismissals of appeals, see Thompson,

492 F.3d at 436 (holding that the PLRA “speaks only of

dismissals, not affirmances”). Accordingly, the PLRA does

not prohibit Mitchell from proceeding IFP.

This, however, does not end our analysis. The

government argues that we should nonetheless deny Mitchell

IFP status as a discretionary matter under Butler, where we

held that courts have authority to deny IFP status to prisoners

who abuse the privilege but who are not technically barred by

the PLRA. 492 F.3d at 445.

We believe the best solution to [the problem of

abusive filers] lies in exercising our

discretionary authority to deny IFP status to

prisoners who have abused the privilege. Our

ability to do so derives from both the PLRA

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itself, and our more general supervisory

authority to manage our docket so as to

promote[] the interests of justice.

Id. at 444–45 (alteration in original) (internal quotation marks

and citation omitted). According to the government, the

“number, frequency, content, and disposition” of Mitchell’s

sixty-five federal cases “reflect an unmistakable pattern of

abuse.” Appellee’s Br. 24.

Amicus argues that in determining whether to invoke

Butler we should consider only some of these sixty-five cases.

Specifically, insisting that the Butler rule is designed to

prevent abuse of this court’s processes, amicus asks that we

look only to the three cases Mitchell has filed in the D.C.

Circuit. We disagree. In Butler itself we considered cases the

prisoner had filed not just in this court, but also in our district

court and in the District Court of Maryland. 492 F.3d at

446–47 & n.8 & 9; see also Hurt v. Soc. Sec. Admin., 544

F.3d 308, 309 (D.C. Cir. 2008) (referring to cases filed in the

district courts as part of the evidence of Hurt’s litigation

history). Even in In re Sindram, 498 U.S. 177 (1991), on

which amicus relies, the Supreme Court denied IFP status in

part because the petitioner had raised the same issue “in five

different state and federal courts on 27 prior occasions.” Id.

at 179. Moreover, the PLRA itself directs courts to consider

cases filed “in a court of the United States,” 28 U.S.C. §

1915(g), and we see no reason to consider a smaller set of

cases when exercising our Butler discretion. The point is this:

we deny IFP status to prisoners who have abused the

privilege, and it would make no sense to disregard evidence

that a prisoner who has yet to abuse the privilege here has

blatantly abused it elsewhere.

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Offering a second reason for considering fewer than all

sixty-five cases, amicus points out that during the proceedings

leading up to this appeal, the government had identified only

twelve cases, but that in its appellate brief it listed a total of

sixty-three (not including the district court or appellate stages

of the instant case). According to amicus, because the

government had “multiple opportunities to identify the cases

on which it wishes to rely,” we should limit our evaluation of

Mitchell’s IFP eligibility to the twelve previously identified

cases. Amicus Curiae Reply Br. 6. Again, we disagree.

Evaluating a prisoner’s entitlement to IFP status is not a

traditional adversarial proceeding where we serve as an

“arbiter[] of legal questions presented and argued by the

parties” and decline to consider arguments raised too late in

order to prevent unfairness. McBride v. Merrell Dow &

Pharma., Inc., 800 F.2d 1208, 1211 (D.C. Cir. 1986) (internal

quotation marks omitted). Rather, Butler calls on us to

exercise our discretion to protect the federal courts from

abusive filers, and proper exercise of that discretion requires

that we act on the basis of as much information as we can

obtain. Indeed, amicus could hardly object if we had

uncovered the additional cases ourselves, as often happens in

IFP proceedings.

At oral argument, amicus conceded that if we consider all

sixty-five cases, Mitchell qualifies under Butler as an abusive

filer. This time we agree. In determining whether to exercise

our Butler discretion, we consider the “number, content,

frequency, and disposition of the petitioner’s previous

filings.” Butler, 492 F.3d at 445. Mitchell has filed sixty-five

cases over fifteen years. All sought the same relief, and all

were unsuccessful. Mitchell’s record is comparable to those

of others whose IFP status we have denied. See, e.g., Hurt,

544 F.3d at 309 (identifying “more than seventy appeals” in

two years, all unsuccessful and many frivolous, such as one

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against the Declaration of Independence). Indeed, Mitchell’s

record—sixty-five cases over fifteen years—is even worse

than Butler’s, who in eight years had filed twenty-five

unsuccessful cases raising the same legal issue. Butler, 492

F.3d at 446.

Again, however, this does not end our task. Amicus

urges us to recognize an exception under Butler for prisoners

facing an imminent danger of serious physical injury and to

find that Mitchell qualifies for it. The government has no

objection to such an exception, but insists that Mitchell fails

to make the cut.

For several reasons, we agree with the parties that we

should recognize an endangerment exception under Butler.

For one thing, it would comport with the considered policy

judgment of Congress as expressed in the PLRA, which

contains an exception to the three-strikes rule for prisoners

who face “imminent danger of serious physical injury.” 28

U.S.C. § 1915(g). As the Supreme Court has instructed,

absent countervailing arguments, “courts can, and indeed

should, be guided by the federal policies reflected in

congressional enactments.” Heck v. Humphrey, 512 U.S. 477,

488 n.9 (1994). Adopting an endangerment exception to

Butler that mirrors the PLRA’s also creates a uniform IFP

policy in this circuit, and the Supreme Court has recently

emphasized the value of such uniformity. Kansas v.

Colorado, 129 S. Ct. 1294, 1298 (2009) (crafting a

discretionary rule by mirroring a statutory rule applicable in

similar cases because “the best approach is to have a uniform

rule that applies in all federal cases”). Finally, although IFP

status may be constitutionally denied to prisoners who have

abused the privilege, see Tucker v. Branker, 142 F.3d 1294,

1299 (D.C. Cir. 1998), recognizing an imminent danger

exception eases any constitutional tension that might result

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from denying access to the courts to prisoners facing life-

threatening conditions.

This, then, brings us to the final question: Does Mitchell

qualify under the imminent danger exception? As with the

PLRA, we assess the alleged danger at the time Mitchell filed

his complaint and thus look only to the documents attesting to

the facts at that time, namely his complaint and the

accompanying motion for IFP status. See Ibrahim v. District

of Columbia, 463 F.3d 3, 6 (D.C. Cir. 2006) (“In determining

whether [the petitioner] qualifies [for the imminent danger

exception], we look to the complaint . . . .”). We construe his

complaint liberally and accept its allegations as true. Id. In

so doing, we reject the government’s argument that we should

instead subject Mitchell’s allegations to the pleading standard

the Supreme Court set forth earlier this year in Ashcroft v.

Iqbal, 129 S. Ct. 1937 (2009). There, the Court held that “a

complaint must contain sufficient factual matter,” alleged in

non-conclusory terms, “to state a claim to relief that is

plausible on its face.” Id. at 1949 (internal quotation marks

omitted). This standard, however, has no applicability to IFP

proceedings where we are exercising our discretion to grant or

withold a privilege made available by the courts. See supra at

6. IFP proceedings are nonadversarial and implicate none of

the discovery concerns lying at the heart of Iqbal. See 129 S.

Ct. at 1950 (“Rule 8 marks a notable and generous departure

from the hyper-technical, code-pleading regime of a prior era,

but it does not unlock the doors of discovery for a plaintiff

armed with nothing more than conclusions.”). Of course, if

IFP status is granted, defendants remain free to rely on Iqbal

in support of a motion to dismiss the underlying complaint.

But when considering IFP eligibility, we shall continue using

the traditional standards applicable to pleadings by pro se

prisoners.

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Amicus contends that Mitchell’s complaint and IFP

motion present two types of imminent danger. First, Mitchell

alleged that even though BOP knew he had testified for the

government, it illegally transferred him to USP Florence, a

prison known for “murders and assaults on

. . . anyone who has been known as a snitch,” and where he

was nearly murdered in October 2003. Compl. 3. Although

we disagree with the government that these allegations are

insufficiently specific, we do agree that Mitchell has failed to

allege that the danger he faces is imminent. Not only did

Mitchell wait until seventeen months after the alleged attack

to file his complaint, but neither the complaint nor his IFP

motion alleges any ongoing threat. Cf. Ashley v. Dilworth,

147 F.3d 715, 717 (8th Cir. 1998) (finding imminent danger

where the inmate alleged that prison officials knowingly

placed him near those who are likely to attack him because

the complaint alleged an ongoing pattern of such placements

and was filed “very shortly after the last attack”).

Mitchell’s second imminent danger claim rests on his

allegations regarding untreated hepatitis. Specifically, he

alleged that he “need[s] medical treatment for Hepatitis B &

C which is incurable and administered to plaintiff at USP

Florence.” Compl. 8. In his IFP motion, he claimed that he

faces imminent danger because he “needs medical treatment

for critical impairments.” Mot. for IFP 2. According to the

government, these allegations fall short because (1) they have

no connection to his Privacy Act claim, see Pettus v.

Morgenthau, 554 F.3d 293, 296 (2d Cir. 2009) (denying the

prisoner’s IFP motion because the complaint “does not seek

any relief specifically related to the abusive conditions” of

which he complained), and (2) they are insufficiently specific

to establish an imminent danger to health. We have no need

to address the government’s first point because we agree with

its second.

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Although we have held that “failure to provide adequate

treatment for Hepatitis C, a chronic and potentially fatal

disease, constitutes ‘imminent danger,’” see Ibrahim, 463

F.3d at 6–7, the prisoner’s factual allegations must be

sufficiently specific for us to infer that the prisoner has a

serious disease and that prison officials have failed to treat it.

Absent such allegations, we have no basis for evaluating the

imminence or dangerousness of the threat the prisoner faces.

Moreover, unless we require prisoners to demonstrate the

actual existence of an imminent threat, otherwise disqualified

filers could obtain IFP status simply by adding general

allegations of endangerment. As the Third Circuit, sitting en

banc, explained in the context of the PLRA’s endangerment

exception, “any time that an otherwise disqualified prisoner

alleges that any threat of physical injury occurred at any time,

that prisoner [would] automatically qualif[y] for the imminent

danger exception. [This] interpretation of the . . . exception

thereby swallows the rule. . . . [W]e refuse to conclude that

with one hand Congress intended to enact a statutory rule . . .

but, with the other hand, it engrafted an open-ended exception

that would eviscerate the rule.” Abdul-Akbar v. McKelvie,

239 F.3d 307, 315 (3d Cir. 2001) (en banc).

The government points to several cases where the

allegations were sufficiently specific to qualify for the

endangerment exception. In Ibrahim, we found an imminent

danger where the prisoner described in detail the denial of

particular medical treatment by named persons on specific

dates. Complaint for Damages at 2–18, Ibrahim, 463 F.3d 3.

Similarly, the Ninth Circuit found imminent danger where the

complaint “recounted in detail” the threat posed by the

prison’s policy of failing to screen inmates for communicable

diseases. Andrews v. Cervantes, 493 F.3d 1047, 1050 (9th

Cir. 2007). And the Eleventh Circuit found imminent danger

where the prisoner sued the facility’s medical officials and

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described treatment that a doctor had prescribed but that

prison officials denied. Complaint Under the Civil Rights Act

at 1, 6–7, Brown v. Johnson, 387 F.3d 1344 (11th Cir. 2004).

By contrast, Mitchell’s allegations are vague and

unspecific. He says he “need[s] medical treatment,” but he

never tells us when he asked for assistance, what kind of

treatment he requested, who he asked, or who denied it.

Indeed, he never even clearly states that medical attention was

actually denied. Had Mitchell alleged any of these facts, we

might treat his motion differently. Absent such allegations,

however, and even viewing his complaint through the

forgiving lens applicable to pro se pleadings, we simply

cannot determine whether Mitchell faces an imminent danger.

Given this, and given the need to ensure that the

endangerment “exception [does not] swallow the rule,” we

conclude that Mitchell’s allegations are insufficient.

III.

For the foregoing reasons, we deny the motion for IFP

status on appeal. If Mitchell wishes to proceed, he has thirty

days from the date of this opinion to pay the filing fee.

So ordered.