Caseflicks

Court of Appeals for the Ninth Circuit • 2007

Andrews v. Cervantes

493 F.3d 1047

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Takeaway

In short, Andrews holds that a three-strikes prisoner may file an entire action IFP when the complaint plausibly alleges an ongoing, imminent risk of serious physical injury at the time of filing; the exception is a fee threshold, not a decision on the merits.

Background

Antolin Andrews, a California prisoner with at least three prior qualifying dismissals under the Prison Litigation Reform Act (PLRA), filed a pro se § 1983 action and sought to proceed in forma pauperis (IFP). His principal claims alleged that the California Department of Corrections and Rehabilitation failed to screen incoming prisoners for communicable diseases and housed contagious prisoners near uninfected prisoners.

Andrews alleged that, during the preceding six months at California State Prison, Solano, he had been housed near inmates with HIV/AIDS, hepatitis C, and Helicobacter pylori. He described close prison quarters, shared toilets, and the possible unauthorized sharing of razors and toothbrushes. He further alleged an ongoing hepatitis C outbreak, a prior tuberculosis infection while incarcerated, and prison officials' failure to respond to his health concerns. He sought injunctive relief requiring disease testing and appropriate housing and treatment, or alternatively a single cell. His complaint also included unrelated claims concerning prison grievances and work assignments.

The magistrate judge concluded that Andrews had three strikes and did not qualify for § 1915(g)'s exception because he had not alleged that he was currently housed with a contagious prisoner. The district court adopted that recommendation, reasoning that Andrews had alleged he already contracted hepatitis and had not alleged current exposure to another contagious inmate. It denied IFP status and closed the case. Andrews appealed; while the appeal was pending, he was transferred from the California prison system to a federal immigration detention facility.

Issues

Issue #1

Whether the PLRA's imminent-danger exception is assessed based on conditions existing when the prisoner files the complaint.

Holding

Yes. A court determines whether a three-strikes prisoner faced imminent danger of serious physical injury at the time the complaint was filed, not at an earlier or later time.

Reasoning

Section 1915(g) bars a three-strikes prisoner from using IFP status to “bring a civil action” unless the prisoner “is under imminent danger of serious physical injury.” The statute's present tense and focus on the act of bringing the action indicate that the relevant circumstances are those existing when the complaint is filed.

This reading accords with the uniform approach of the other circuits that had considered the question. It also means that Andrews's later transfer from the California prison system did not affect whether he qualified for the exception when he initiated this lawsuit.

The court did not decide whether the transfer might moot Andrews's request for prison-specific injunctive relief. That question was distinct from the threshold IFP determination, and Andrews's damages claims meant that the action as a whole was not moot.

Issue #2

Whether a prisoner who satisfies the imminent-danger exception as to one claim may proceed IFP on the entire complaint, including unrelated claims.

Holding

Yes. Once the imminent-danger exception applies, the prisoner may file the entire civil action IFP; § 1915(g) does not impose a claim-by-claim or relief-by-relief limitation.

Reasoning

The statutory term “civil action” ordinarily refers to the case as a whole, not separately to each claim within it. The Ninth Circuit had already interpreted the same term in § 1915(g)'s strike provision to refer to an entire prior case, so it would be anomalous to give the term a different meaning in the exception.

The filing fee is charged for the action as a whole, and the statute provides no mechanism for dividing or prorating that fee among individual claims. Applying the exception to the whole case therefore best fits the statute's structure and purpose.

Section 1915(g) is a gateway rule about prepayment of fees, not a merits-screening device. Other PLRA provisions permit dismissal of frivolous or legally insufficient claims after filing, so unrelated claims could still be addressed under the ordinary screening rules.

Issue #3

Whether Andrews plausibly alleged that he was under imminent danger of serious physical injury when he filed his complaint.

Holding

Yes. Liberally construed, Andrews's allegations of an ongoing prison practice exposing him to HIV and hepatitis C stated a plausible imminent danger of serious physical injury for purposes of § 1915(g).

Reasoning

The claimed risk of contracting HIV or hepatitis C plainly involved potentially serious physical injury. Those illnesses can produce grave health consequences and may be fatal, so Andrews satisfied the seriousness component of the exception.

“Imminent” does not mean that the injury must already be occurring or that the prisoner must be exposed to a particular danger at the exact moment of filing. It includes a danger that is ready to occur or threateningly impending. Requiring an injury already in progress would create an unreasonable catch-22: a suit would be too early before injury and too late after it.

Andrews alleged an ongoing policy of failing to screen and segregate contagious prisoners, his repeated close housing with infected inmates, an ongoing hepatitis C outbreak, and conditions that could lead to blood-contact transmission through shared razors or toothbrushes. He also alleged past harm from similar prison conditions. Those facts plausibly alleged a continuing practice creating a likelihood of serious injury at the time he filed.

At the IFP stage, the court was not deciding whether Andrews could ultimately prove that the disease-transmission risk was medically sound or that prison officials violated the Eighth Amendment. The state's arguments about ordinary modes of HIV and hepatitis C transmission went to the merits, while Andrews's factual allegations were enough to clear the limited threshold imposed by § 1915(g).