FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT December 9, 2019 _________________________________ Elisabeth A. Shumaker Clerk of Court RUSSELL M. BOLES,

Plaintiff - Appellant,

v. No. 19-1314 (D.C. No. 1:19-CV-01158-LTB) COLORADO DEPARTMENT OF (D. Colo.) CORRECTIONS; CHARLENE CROCKET; KRISTY HOLJENIN; MAJOR ZWIRN; RABBI YISROEL ROSSKAMM; CAPTAIN KENNETH PHIPPS; CAPTAIN CYRUS CLARKSON; LT. IAN BARNES; LT. TAYLOR; LT. MATTHEW POWELL; LT. DERRICK ROBERTS; DOCTOR BRYAN REICHERT; GARY WARD; REIDER MAY; NICOLE WILSON; DOC ACCOUNTING PERSONNEL; GTL; CAPTIAIN J. DORCEY; LT. CUSTER; MS. FULLER; LIEUTENANT SHAWNA NYGAARD,

Defendants - Appellees. _________________________________

ORDER AND JUDGMENT* _________________________________

Before MATHESON, McKAY, and BACHARACH, Circuit Judges.**

* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. ** After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. _________________________________

Plaintiff Russell Boles, a state prisoner proceeding pro se, filed a complaint in

the district court against the Colorado Department of Corrections and numerous

prison officials, asserting violations of his rights under the Constitution and federal

law. On the same day, Plaintiff filed a motion to proceed in forma pauperis pursuant

to 28 U.S.C. § 1915. The magistrate judge noted that Plaintiff had accrued three

“strikes,” meaning that, while incarcerated, he had previously brought three civil

actions or appeals in federal courts that were dismissed as frivolous or for failure to

state a claim. Accordingly, the magistrate judge ordered Plaintiff to show cause why

his IFP motion should not be denied under § 1915(g), which prohibits prisoners who

have three or more strikes from proceeding IFP or bringing further actions without

pre-paying the filing fee.

In response, Plaintiff did not contest that he had accrued three strikes but,

instead, asserted that he fit under an exception to the filing restriction, namely that he

was “under imminent danger of serious physical injury.” 28 U.S.C. § 1915(g). After

reviewing Plaintiff’s submissions, however, the district court determined that he had

offered only “vague and conclusory allegations in support of” his assertion of

imminent danger and that he had “fail[ed] to link the alleged imminent danger to

[his] claims.” (R. at 50–51.) Accordingly, the court denied the IFP motion and

ordered Plaintiff to pay the filing fee within a certain time.1 When Plaintiff failed to

1 The court also denied a subsequent motion for reconsideration because the court “remain[ed] convinced” that Plaintiff had put forward only “vague and 2 timely pay the fee, the court dismissed the action without prejudice pursuant to Fed.

R. Civ. P. 41(b) and entered judgment for Defendants.2 Plaintiff timely appealed.

On appeal, Plaintiff filed a motion to proceed IFP. Like the magistrate judge,

we noted that Plaintiff has accrued three strikes and ordered him to show cause why

the appeal should not be dismissed for failure to prepay the filing fee or why the

filing restriction does not apply. In his response to the show-cause order, as in the

district court, Plaintiff did not contest the three strikes but instead asserted that he is

under imminent danger of serious physical injury. We deferred ruling on Plaintiff’s

IFP motion and allowed him to file a brief on the merits.

As a threshold issue, before addressing the merits, we must determine whether

§ 1915(g) prevents us from considering Plaintiff’s appeal. See Dopp v. Larimer, 731

F. App’x 748, 750–52 (10th Cir. 2018). “The ‘three strikes’ provision of the [IFP]

statute applicable to indigent prisoners requires so-called ‘frequent filer’ prisoners to

prepay the entire filing fee before federal courts may consider their civil actions and

appeals.” Hafed v. Fed. Bureau of Prisons, 635 F.3d 1172, 1176 (10th Cir. 2011)

(internal quotation marks and brackets omitted), abrogated on other grounds by

conclusory,” rather than “specific and credible[,] factual allegations demonstrating imminent danger of serious physical injury.” (R. at 64.) 2 Following the denial of his motion for reconsideration, Plaintiff filed an amended complaint, which the court understood “to be another attempt to establish imminent danger of serious physical injury.” (R. at 92.) The court nonetheless “remain[ed] convinced” that the “vague and conclusory allegations” in the amended complaint were “not specific and credible factual allegations demonstrating imminent danger of serious physical injury.” (Id.) The court therefore dismissed the amended complaint.

3 Coleman v. Tollefson, 135 S. Ct. 1759 (2015). “There is only one exception to the

prepayment requirement in § 1915(g), and it applies to a prisoner who ‘is under

imminent danger of serious physical injury.’” Id. at 1179 (internal citation omitted)

(quoting § 1915(g)). “[A] prisoner qualifies for the exception if he makes ‘specific,

credible allegations of imminent danger of serious physical harm.’” Dopp, 731 F.

App’x at 751 (quoting Hafed, 635 F.3d at 1179). “Allegations in the complaint [or

appeal] of ‘imminent danger’ must not be ‘vague and utterly conclusory.’” Stine v.

U.S. Fed. Bureau of Prisons, 465 F. App’x 790, 792 (10th Cir. 2012) (quoting White

v. Colorado, 157 F.3d 1226, 1231 (10th Cir. 1998)). Thus, if a prisoner relies on

allegations of deliberate indifference to a medical need to satisfy the imminent-

danger exception, “‘he should make a specific reference as to which of the

defendants may have denied him what medication or treatment for what ailment on

what occasion,’” id. at 793 (internal quotation marks omitted) (quoting Hafed, 635

F.3d at 1180), and “identify at least ‘the general nature of the serious physical injury

he asserts is imminent,’” Hafed, 635 F.3d at 1180 (internal quotation marks omitted)

(quoting White, 157 F.3d at 1232).

Further, “an inmate seeking the imminent danger exception must show ‘a

nexus between the imminent danger [he] alleges . . . and the legal claims asserted.’”

Lomax v. Ortiz-Marquez, 754 F. App’x 756, 759 (10th Cir. 2018) (quoting Pettus v.

Morgenthau, 554 F.3d 293, 297 (2d Cir. 2009)); see also Day v. Maynard, 200 F.3d 665, 667 (10th Cir. 1999) (concluding that assertion of imminent danger at one prison

is insufficient when prisoner’s claims relate only to actions by officials in a different

4 prison). Determining if a sufficient nexus exists involves considering “whether the

imminent danger of serious physical injury” alleged is “fairly traceable to unlawful

conduct asserted in the complaint” or appeal and “whether a favorable judicial

outcome would redress that injury.” Lomax, 754 F. App’x at 759 (internal quotation

marks and emphases omitted).

A three-strikes prisoner must sufficiently allege imminent danger in a trial

court at the time his complaint is filed and in an appellate court at the time his appeal

is filed. See Dopp, 731 F. App’x at 750–51; Hafed, 635 F.3d at 1179. Although a

prisoner should advance his allegations of imminent danger in his IFP motion, courts

may also look to other filings as well, bearing in mind that prisoners seeking IFP

status are almost always proceeding pro se. See Hafed, 635 F.3d at 1180. In

determining if a prisoner’s allegations are sufficient to meet the imminent-danger

exception, we construe his filings liberally and accept his well-pled allegations as

true, see Davis v. Rice, 299 F. App’x 834, 835 (10th Cir. 2008), and we require only

that his allegations facially satisfy the threshold showing that the imminent-danger

exception applies, see Fuller v. Myers, 123 F. App’x 365, 367–68 (10th Cir. 2005).

Liberally construed, Plaintiff’s appellate filings allege the following. Plaintiff

has a lengthy history of irritable bowel syndrome, which has been diagnosed and

documented in the Department of Corrections’s own records. The standard treatment

for his condition is a fresh-food diet. Despite Plaintiff’s complaints, Defendants

Kristy Holjenin and Charlene Crocket, who are responsible for prisoners’ diets, have

refused to provide him a fresh-food diet and have instead provided him food that he

5 cannot digest and that causes him “excruciating pain,” prompting him to forego

meals altogether.3 (Answer to Order to Show Cause at 2.) Defendant Doctor Bryan

Reichert has refused to prescribe a fresh-food diet, or to otherwise treat Plaintiff’s

IBS other than by prescribing fiber supplementation, based on medical tests that

Plaintiff asserts are irrelevant. Aside from severe pain, his untreated IBS, along with

a lack of digestible food, has also resulted in aggravation of a degenerative bone

condition and swelling in his legs.

These allegations facially satisfy the threshold requirement to show that

Plaintiff is under imminent danger of serious physical injury. Plaintiff has specified

which of the Defendants (Holjenin, Crocket, and Reichert) denied him what

treatment (a fresh-food diet) for what ailment (IBS) on what occasion (after he

complained to Holjenin and Crocket and sought treatment from Reichert, and

continuing into the present), and he has identified the general nature of the alleged

imminent physical injuries (severe pain, aggravated bone degeneration, and leg

swelling resulting from untreated IBS and an undigestible diet). See Stine, 465 F. App’x at 793; Hafed, 635 F.3d at 1180, White, 157 F.3d at 1232. These allegations

are not vague or utterly conclusory but are instead specific, credible allegations of

imminent danger of serious physical injury. See Dopp, 731 F. App’x at 751; Stine,

465 F. App’x at 792; White, 157 F.3d at 1231. “[W]e have previously held that a

3 Although portions of Plaintiff’s brief might be read to suggest that prison officials provide him no food whatsoever, other portions of the brief and his other filings clarify that Plaintiff has opted to not eat the food he is provided at least in part to avoid the pain resulting from a non-fresh-food diet. 6 plaintiff’s particularized ‘allegations that Defendants have displayed a deliberate

indifference toward his serious medical needs and denied him adequate medical

treatment are sufficient to facially establish the . . . imminent and serious danger

requirement for proceeding IFP.’” Dopp, 731 F. App’x at 751 (quoting Davis. v.

GEO Grp. Corr., Inc., 696 F. App’x 851, 855 (10th Cir. 2017)); see Fuller v. Myers,

123 F. App’x at 367 (“[D]eliberate indifference to a prisoner’s serious medical

conditions has been found to satisfy the [imminent-danger] requirement.” (citing

Hunt v. Uphoff, 199 F.3d 1220, 1222 (10th Cir. 1999))). Indeed, we have regularly

held that specific allegations, roughly similar to Plaintiff’s, of prison officials

refusing to treat a prisoner’s chronic condition that causes severe pain or aggravates

debilitating symptoms are enough to facially satisfy the imminent-danger exception.4

4 See, e.g., Dopp, 731 F. App’x at 751–52 (holding allegations of “inadequately treated” and “worsening” “spinal condition . . . causing . . . unbearable pain” were sufficient); Davis v. GEO Grp., 696 F. App’x at 854–55 (holding allegations that prisoner “has long suffered from substantial and chronic back pain,” “cannot sit or stand for extended periods without being in terrible pain,” “experiences a constant grinding in his neck and popping in his back,” and has numbness in his limbs “whenever he tries to sleep on his side” were sufficient when prisoner also alleged officials diagnosed him with degenerative disease but provided inadequate treatment and refused to refer him to a specialist who might offer adequate treatment); id. at 855 (collecting cases); Stine, 465 F. App’x at 794–96 (holding allegations that prisoner suffers “reflux of blood, pain when he eats or talks, reduced ability to swallow without pain, and permanent damage to his esophagus lining” unless given a drug which officials refused to provide were sufficient (internal citations, quotation marks, and brackets omitted)); id. at 794 (collecting cases); cf. Fuller v. Myers, 123 F. App’x at 366–67 (holding allegations of “breathing difficulties and other respiratory problems,” “[s]evere headaches, watery eyes, dust and lint in [the prisoner]’s mucous, [and] nose bleeds” caused by officials’ refusal to clean the prison’s ventilation system were sufficient).

7 Further, Plaintiff has shown a sufficient nexus between the imminent danger

he alleges and the claims at issue on appeal. Plaintiff asserts that the district court

erred by dismissing his claim, among others, that Defendants are violating his Eighth

Amendment rights by being deliberately indifferent to his serious medical needs.5

Specifically, Plaintiff alleges Defendants refuse to provide adequate medical

treatment for his IBS and related conditions by failing to prescribe or offer him a

fresh-food diet. He asks that his “case [be] sent back to District Court” “[s]o the

court may compel the [prison] officials to provide the current standard

accommodations they are not currently providing.” (Appellant’s Br. at 4, 12.) Thus,

the imminent danger of serious physical injury Plaintiff alleges (harm resulting from

inadequate treatment of IBS) is fairly traceable to the unlawful conduct he asserts on

appeal (deliberate indifference to his IBS condition), and a decision in his favor

(remand to the district court where his claim, if proved, might be redressed) could

redress that injury. See Lomax, 754 F. App’x at 759.

5 Plaintiff’s complaint contains several claims that are either unrelated, or only tangentially related, to his IBS condition. The claim that is related to his IBS condition, however, is sufficient, as the imminent-danger exception is not evaluated on a claim-by-claim basis. See Andrews v. Cervantes, 493 F.3d 1047, 1053–54 (9th Cir. 2007) (“[O]nce a prisoner satisfies the exception to the three-strikes rule and otherwise qualifies for IFP status, the district court must docket the entire complaint and resolve all of its claims . . . [even if] a number of the claims in [the] suit unquestionably d[o] not allege an imminent danger of serious physical injury.”); Chavis v. Chappius, 618 F.3d 162, 171–72 & n.7 (2d Cir. 2010) (reaching same conclusion and noting that all circuit courts to have considered this issue have held likewise, with citations to Andrews and cases from three other circuits). 8 Because Plaintiff has satisfied the imminent-danger requirement, he may

proceed IFP in this appeal. We now turn to the merits.

Plaintiff asserts the district court erred in determining he had failed to satisfy

the imminent-danger requirement, which ultimately resulted in dismissal. The

allegations of imminent danger Plaintiff raised in the district court are the same

allegation he raises in this appeal. Those allegations should have been as sufficient

in the district court as they are here.6

6 The standard of review applicable to a district court’s determination as to whether the imminent-danger exception applies remains unsettled. At least two of our unpublished decisions have suggested the abuse-of-discretion standard applies. See Davis v. Rice, 299 F. App’x at 835; Bakalov v. McCotter, 141 F.3d 1184 (table), 1998 WL 165119, at *1 (10th Cir. 1998). However, at least three unpublished decisions have vacated a denial of IFP status after conducting what seems to be a de novo assessment of the imminent-danger allegations and apparently concluding that, if the allegations are sufficient for purposes of appellate IFP status, they are also sufficient for purposes of IFP status in the district court. See Davis v. GEO Grp., 696 F. App’x at 853–56; Fuller v. Wilcox, 288 F. App’x 509, 510–11 (10th Cir. 2008); Fuller v. Myers, 123 F. App’x at 366–68. Decisions from other circuits are not helpful. A few circuits, like our circuit, seem not to apply a consistent standard. Compare, e.g., Jones v. U.S. Nat’l Fed. Debt Contractors, No. 18-12570-D, 2019 WL 2567721, at *1 (11th Cir. Feb. 13, 2019) (de novo), and Fourstar v. Eckroth, 512 F. App’x 127, 127 (3d Cir. 2013) (de novo), and Andrews, 493 F.3d at 1052 (de novo), with Brown v. Wolf, 705 F. App’x 63, 66–67 (3d Cir. 2017) (abuse of discretion), and Barber v. Krepp, 680 F. App’x 819, 821 (11th Cir. 2017) (abuse of discretion), and Bradford v. Ogbuehi, 683 F. App’x 634, 635 (9th Cir. 2017) (abuse of discretion). A majority of the remaining circuits appear to apply a de novo standard. See Shepherd v. Annucci, 921 F.3d 89, 93 (2d Cir. 2019); Wallace v. Baldwin, 895 F.3d 481, 483 (7th Cir. 2018); Coleman v. Crawford, 571 F. App’x 502, 502 (8th Cir. 2014); Chase v. O’Malley, 466 F. App’x 185, 186 (4th Cir. 2012); Foster v. Unidentified Party, 34 F. App’x 963, 963 (5th Cir. 2002). But see Vandiver v. Prison Health Servs., Inc., 727 F.3d 580, 585 (6th Cir. 2013) (applying abuse-of-discretion standard). However, their decisions do not offer much reasoning for the choice. We decline to determine here the appropriate standard of review because, under either standard, we would reach the same decision. 9 Accordingly, we GRANT Plaintiff’s motion to proceed IFP in this appeal,

VACATE the district court’s order dismissing the action, VACATE the district

court’s order denying Plaintiff’s motion to proceed IFP, and REMAND the case to

the district court for further proceedings. In so doing, we express no opinion as to

the ultimate merits of this case.

Entered for the Court

Monroe G. McKay Circuit Judge

10