United States District Court, S.D. Mississippi, Western Division
ORDER AND OPINION
Bramlette UNITED STATES DISTRICT JUDGE
the Court is a Motion to Revoke Plaintiff's IFP Status,
Or, Alternatively, Motion for Summary Judgment [Docs.
30, 32] filed by Defendants Richard Pickett, Jody
Bradley, Gabriel Walker, and Diania Walker.
at the Wilkinson County Correctional Facility assaulted
fellow inmate Carl Watts on November 7, 2016. Four months
later, Watts sued Defendants -- prison staff and management
-- for failing to protect him from the assault.
same day, Watts sought leave to proceed in forma pauperis
(“IFP”). [Doc. 2] The Court tentatively granted
Watts's Motion. [Doc. 6] In so doing, it advised that
Watts had accumulated at least three strikes under the Prison
Litigation Reform Act, 28 U.S.C. § 1915(g), but
concluded that “[a]t this stage in the proceedings,
this Court cannot definitively state that Plaintiff did
not meet the exception provision at the time he
filed his Complaint.” [Doc. 6]
with Watts's Spears hearing testimony, Defendants move
the Court for an order revoking his IFP status. [Docs. 30,
32]That testimony, Defendants contend, shows
that Watts was not in imminent danger when he filed this
suit. And because Watts was not in imminent danger,
Defendants continue, the imminent-danger exception does not
apply, and Watts cannot proceed IFP.
particular, Defendants underscore the chronology of events:
Watts alleges he was assaulted on November 7, 2016 and did
not file this suit until four months later, on March 27,
2017. By that time, Defendants insist, Watts was not in
“imminent danger” because the prison had
“red tagged” Watts's assailants, thus
ensuring they could not assault him again.
disagrees. He rejoins that he was in “imminent
danger” at the time he filed this suit because prison
staff had placed him in the same zone as some of the men who
assaulted him. [Doc. 35, p. 4] Watts claims he is endangered
because prison staff have permitted he and his assailants to
leave their cells at the same time. [Doc. 35, p. 4]
prisoner with at least three strikes, Watts may proceed IFP
only if he was in “imminent danger of serious physical
injury” at the time he filed this suit. 28 U.S.C.
§ 1915(g); Banos v. O'Guin, 144 F.3d 883,
884 (5th Cir. 1998) (per curiam).
danger means a “genuine emergenc[y] where time is
pressing and a threat is real and proximate.”
Heimermann v. Litscher, 337 F.3d 781, 782 (7th Cir.
2003) (per curiam) (internal citation omitted). So the
imminent-danger exception applies only to impending -- not
past -- harms. Abdul-Akbar v. McKelvie, 239 F.3d
307, 315 (3d Cir. 2001).
routinely revoke tentatively-granted IFP status when facts
developed post-complaint show that the plaintiff was not in
imminent danger on the date he filed suit. See, e.g.,
Johnson v. Abangan, 3:17-CV-102-DPJ-FKB, 2018 U.S. Dist.
LEXIS 44524 (S.D.Miss. Mar. 15, 2018); Liner v.
Fischer, 11-Civ-6711-PAC, 2014 U.S. Dist. LEXIS 152008
(S.D.N.Y. Oct. 24, 2014); Levingston v. Locke,
12-Civ-4284-LHK-PR, 2013 U.S. Dist. LEXIS 96409 (N.D. Cal.
July 9, 2013).
filed this suit on March 27, 2017. Facts developed since show
that he was not in imminent danger at that time. He is
therefore barred ...