United States v. Nickolas Conrad

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 02-2770
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Lawrence Martin, *
*
Plaintiff - Appellant, *
*
v. *
* Appeal from the United States
Roger Shelton, Lt., Maximum Security * District Court for the
Unit; John Kliener, Major, Maximum * Eastern District of Arkansas.
Security Unit, *
*
*
Defendants - Appellees. *
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Submitted: February 14, 2003
Filed: February 24, 2003
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Before LOKEN, RILEY, and SMITH, Circuit Judges.
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LOKEN, Circuit Judge.
Arkansas inmate Lawrence Martin filed this 42 U.S.C. § 1983 action pro se
against two members of the Arkansas Department of Correction’s Maximum Security
Unit staff, alleging that defendants violated his constitutional right to be free from
cruel and unusual punishment by forcing him to work in thirty-degree weather
without warm clothing on February 21, 2001. Martin subsequently amended his
complaint to add a claim that defendants forced him to work outside on July 26, 2001,

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in humid, 98-degree weather despite his high blood pressure condition. Defendants
moved for summary judgment. As to the first occasion, defendants submitted
evidence that Martin came to work without warm clothing, quit working before staff
could retrieve a coat for him, and was placed on disciplinary review status for
refusing to work. As to the second occasion, defendants submitted evidence that
Martin quit working, was again put on disciplinary review for that reason, and
showed no signs of physical distress that day. Moreover, his medical records show
that he saw a nurse practitioner the next day and made no complaint consistent with
his allegation that he had quit working because he feared a heart attack or stroke from
working in the heat.
The district court granted summary judgment dismissing the amended
complaint, concluding that defendants were entitled to qualified immunity with
respect to the February 2001 incident, and that Martin had failed to exhaust his prison
remedies with respect to the July 2001 incident, as 42 U.S.C. § 1997e requires.
Martin appeals. We affirm.
The Prison Litigation Reform Act of 1996 enacted what is commonly referred
to as the “three strikes” provision, codified at 28 U.S.C. § 1915(g). This statute
provides that an inmate who has had three prior actions or appeals dismissed as
frivolous, malicious, or for failure to state a claim may not proceed in a civil action
in forma pauperis “unless the prisoner is under imminent danger of serious physical
injury.” The statute’s bar does not preclude the inmate from filing additional actions
but does deny him the advantages of proceeding in forma pauperis. In this case,
Martin had filed at least three frivolous civil actions prior to this action, but he was
permitted to proceed in forma pauperis in the district court and on appeal, without
paying the required filing fees. In our view, this was error because he did not
sufficiently allege the kind of imminent danger of serious physical injury that falls
within the exception to 28 U.S.C. § 1915(g).

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This Court and several other circuits have concluded that the requisite
imminent danger of serious physical injury must exist at the time the complaint or the
appeal is filed, not when the alleged wrongdoing occurred. See Ashley v. Dilworth,
147 F.3d 715, 717 (8th Cir. 1998); Abdul-Akbar v. McKelvie, 239 F.3d 307, 312 (3rd
Cir. 2001) (en banc) (collecting cases and overruling contrary prior Third Circuit
authority). Moreover, the exception focuses on the risk that the conduct complained
of threatens continuing or future injury, not on whether the inmate deserves a remedy
for past misconduct. “By using the term ‘imminent,’ Congress indicated that it
wanted to include a safety valve for the ‘three strikes’ rule to prevent impending
harms, not those harms that had already occurred.” Id. at 315. Applying these
principles, we have concluded that the imminent-danger-of-serious-physical-injury
standard was satisfied when an inmate alleged that prison officials continued to place
him near his inmate enemies, despite two prior stabbings, Ashley, 147 F.3d at 717;
and when an inmate alleged deliberate indifference to his serious medical needs that
resulted in five tooth extractions and a spreading mouth infection requiring two
additional extractions, McAlphin v. Toney, 281 F.3d 709, 710-11 (8th Cir. 2002).
Here, on the other hand, Martin alleges that defendants forced him to work
outside in inclement conditions on two occasions five months apart. The weather
conditions on the two days were dissimilar. In each instance Martin quit working and
was taken inside, out of the alleged danger, though he did suffer prison discipline for
acting unilaterally. The amended complaint made no allegation of ongoing danger,
other than conclusory assertions that defendants were trying to kill Martin by forcing
him to work in extreme conditions despite his blood pressure condition. This type of
general assertion is insufficient to invoke the exception to § 1915(g) absent specific
fact allegations of ongoing serious physical injury, or of a pattern of misconduct
evidencing the likelihood of imminent serious physical injury. See Abdul-Akbar, 239
F.3d at 315 n.1.

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For the foregoing reasons, we conclude that Martin’s amended complaint failed
to satisfy the imminent-danger-of-serious-physical-injury exception to 28 U.S.C.
§ 1915(g) at the time he filed that complaint. Our normal disposition in these
circumstances would be to remand to the district court to give Martin the opportunity
to reinstate his lawsuit by paying the filing fee due in the district court (and on
appeal). See Baños v. O’Guin, 144 F.3d 883, 885 (5th Cir. 1998). However, having
carefully reviewed the record on appeal, we further conclude that summary judgment
dismissing his claims was properly granted for the reasons stated by the district court.
Accordingly, we affirm the judgment of the district court.
A true copy.
Attest:
CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.

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