Evans v. Hall et al
Filing
13
ORDER granting 9 Motion to file complaint due to imminent danger(imminent danger); granting 1 Motion to file complaint due to imminent danger(imminent danger). Signed by Senior Judge Neal B. Biggers on 11/16/18. (jla)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF MISSISSIPPI
GREENVILLE DIVISION
CURTIS C. EVANS
v.
PLAINTIFF
No. 4:18CV128-NBB-JMV
PELICIA HALL, ET AL.
DEFENDANTS
ORDER GRANTING PLAINTIFF’S MOTIONS [1], [9]
TO FIND THAT HE IS IMMINENT DANGER, PERMITTING
CASE TO GO FORWARD, WITH A SANCTIONS WARNING
This matter comes before the court on the motions [1], [9] by the plaintiff for the court to
permit him to proceed as a pauper in this case, despite the fact that he has accumulated three “strikes”
under the Prison Litigation Reform Act. See 28 U.S.C. § 1915(g). Four of Mr. Evans’ prior pro se
prisoner cases have been dismissed either as frivolous, malicious, or for failure to state a claim upon
which relief could be granted, and those dismissals count as “strikes” under the PLRA. See Evans v.
Fisher, 15-60849 (5th Cir., Opinion of February 13, 2017) (noting that Evans has accumulated four
“strikes.”)1 As a result, Mr. Evans may no longer proceed as a pauper in cases he files as a prisoner
unless he alleges that he is “under imminent danger of serious physical injury.” Id., 28 U.S.C. §
1915(e). Mr. Evans has presented the instant case to the court and has moved [1], [9] for the court to
find that his allegations meet the “imminent danger” exception to the “three strikes” rule.
Mr. Evans’ allegations are general in nature. He alleges that his many lawsuits against
Mississippi Department of Corrections officials have caused the officials to threaten him with harm if
he refuses to dismiss pending suits and stop filing new ones. He states:
1
As discussed below, Mr. Evans also voluntarily dismissed other cases after the Fifth Circuit warned
him that it would impose further sanctions if those suits were later found to be frivolous, repetitive, or
otherwise abusive.
[I] was nearly beaten to death by M.D.O.C. officials on Friday, July 21st, 2017, made
to plead for my life, and to say that I would drop all of my lawsuits against M.D.O.C.
Being denied protection, I was forced by a knife wielding cell mate, to drop all my
lawsuits against M.D.O.C., or else be killed in November of 2017.
Being denied protection by M.D.O.C., I was thrown back on the zone to die, on April
2, 2018, after informing Captain McDavid that my life is in jeopardy, and nearly
beaten to death by several inmates.
Doc. 1. Mr. Evans reiterates these allegations in his other submissions to the court. In his second
motion [9] regarding imminent danger, Mr. Evans states, “My medical records prove all of my claims,
along with the camera system.”
The court has reason to doubt Mr. Evans’ allegations regarding imminent danger. First, he
alleges that on two different occasions, he was “nearly beaten to death.” He has not, however,
provided any details regarding the identity of his attackers or the exact nature and severity of his
injuries. Nor has he provided copies of medical records which might support these allegations. In
addition, he claims that various MDOC staff members and inmates compelled him to dismiss his
pending cases. However, he made his decision to dismiss those cases a few months after the Fifth
Circuit gave him this warning:
We WARN Evans that any more frivolous, repetitive, or otherwise abusive filings will
result in sanctions, such as dismissal, monetary fines, and restrictions on his ability to
file pleadings in this court and any court subject to our jurisdiction. We also WARN
Evans to review any pending suits or appeals he has already filed and move to dismiss
those that are frivolous.
See Evans v. Fisher, 15-60849 (5th Cir., Opinion of February 13, 2017) (emphasis added.) Thus, it is
plausible that Mr. Evans, who has a history of abusive filings, dismissed his pending suits, not
because of threats and intimidation by staff and inmates, but because the Fifth Circuit cautioned him
regarding the consequences of proceeding with frivolous or abusive suits.
To meet the exception to the prepayment requirement of 28 U.S.C. § 1915, a prisoner who has
accrued three “strikes” must make specific, credible allegations of imminent danger. Hafed v.
Federal Bureau of Prisons, 635 F.3d 1172 (10th Cir. 2011). If a defendant contests a plaintiff’s
claims of imminent danger, the court must determine the allegations’ credibility, either by relying on
affidavits or depositions or by holding a hearing. Taylor v. Watkins, 623 F.3d 483, 484 (7th Cir.
2010). A nexus must exist between the imminent danger a three-strikes prisoner alleges to obtain
pauper status and the legal claims asserted in the complaint. Pettus v. Morgenthau, 554 F.3d 293
(2d Cir. 2009). The statute requires that the inmate’s complaint seeks to redress an imminent danger
of serious physical injury – and that this danger must be fairly traceable to a constitutional violation
alleged in the complaint. Id. At the present stage, the court must evaluate whether Mr. Evans may
proceed based on his allegations. Though it is arguable that Mr. Evans’ allegations are insufficient to
proceed, the court will err on the side of caution and finds that the allegations meet the standard.
The court, nonetheless, harbors doubts about the veracity of Mr. Evans’ allegations. For this
reason, the court WARNS Mr. Evans, however, that should evidence come to light in this case
showing that his claims of imminent danger are false, then the court will determine what sanction is
necessary to deter such behavior in the future. Such evidence might consist of medical records at
odds with his allegations of severe beatings – or records showing that his encounters with prison staff
arose out of his misbehavior, such as setting fires in his cell or refusing to comply with the orders of
staff – rather than from animus towards him arising out of his previous suits.
If, after considering this warning, Mr. Evans decides that his claim of imminent danger might
be unsupported in the record, then he may, before the matter proceeds further, voluntarily dismiss this
case, as he did in a previous case in this court, Evans v. Fisher, 4:16CV84-DMB-DAS (order of
November 1, 2017). If Mr. Evans voluntarily dismisses this case, then the court will not consider
sanctions. If, however, Mr. Evans proceeds with this case – and the court later finds his allegations
of imminent danger to be unsupported – then the court will immediately order briefing on the issue of
sanctions.
In sum, the instant motions [1], [9] to proceed with this case under 28 U.S.C. § 1915(e), the
exception to the “three strikes” rule, are GRANTED, and this case will proceed.
SO ORDERED, this, the 16th day of November, 2018.
/s/ Neal Biggers
NEAL B. BIGGERS
SENIOR U. S. DISTRICT JUDGE
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