Andrews v. Cervantes

• Decision Date: 26 June 2007
• Docket Number: No. 04-17459.,04-17459.
• Citation: 493 F.3d 1047
• Court: U.S. Court of Appeals — Ninth Circuit
• Parties: Antolin ANDREWS, Plaintiff-Appellant, v. Santos CERVANTES, Appeals Coordinator; Tom L. Carey, Warden; James E. Tilton,<SMALL><SUP>*</SUP></SMALL> Director of the California Department of Corrections and Rehabilitation; Trevino, Sergeant; H. Kosher, Librarian; Theresa Rice, Supervisor of Adult Instruction; M. Valdez, Correctional Officer at CSP Solano; Mills, Correctional Officer at CSP Solano, Defendants-Appellees.

493 F.3d 1047

Antolin ANDREWS, Plaintiff-Appellant, v. Santos CERVANTES, Appeals Coordinator; Tom L. Carey, Warden; James E. Tilton,^* Director of the California Department of Corrections and Rehabilitation; Trevino, Sergeant; H. Kosher, Librarian; Theresa Rice, Supervisor of Adult Instruction; M. Valdez, Correctional Officer at CSP Solano; Mills, Correctional Officer at CSP Solano, Defendants-Appellees.

No. 04-17459.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted December 8, 2006.

Filed June 26, 2007.

Amended July 5, 2007.

Paul T. Friedman, Morrison & Foerster, LLP, San Francisco, CA, and Melissa Ann Jones, Morrison & Foerster, LLP, Sacramento, CA, for the plaintiff-appellant.

Megan R. O'Carroll, Deputy Attorney General, Sacramento, CA, for defendant-appellee James E. Tilton.

Appeal from the United States District Court for the Eastern District of California; William B. Shubb, Chief District Judge, Presiding. D.C. No. CV-03-01218-WBS.

Before: D.W. NELSON, ROBERT E. COWEN,^** and MARSHA S. BERZON, Circuit Judges.

ORDER

The Opinion filed on June 26, 2007, is amended as follows: [Slip Opinion at p. 7640]

Replace the words "previously determined not to cause an imminent danger" at the end of footnote 11 with the words "rejected in an earlier case."

OPINION

BERZON, Circuit Judge.

Antolin Andrews is a prisoner who has filed several dozen lawsuits in federal court during his confinement. Although he has become as adept as the best attorney at accessing the courthouse clerk's office, his success rate on the merits of his cases is much less enviable. And therein lies Andrews's problem.

Since the 1996 passage of the Prison Litigation Reform Act ("PLRA"), an inmate like Andrews who has filed numerous unsuccessful lawsuits can become ineligible to file additional lawsuits in federal court without paying the ordinary $350 fee upon filing, even if the inmate is indigent. The PLRA provides for such a limitation on filing suit through its rule, nicknamed the "three-strikes rule," making in forma pauperis ("IFP") status unavailable to prisoners who have "on 3 or more prior occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of the United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted." 28 U.S.C. § 1915(g); see also Andrews v. King, 398 F.3d 1113, 1116 n. 1 (9th Cir. 2005) (noting the "three strikes" terminology). When Andrews filed the lawsuit underlying this appeal, the district court found that the three-strikes rule applied to Andrews, refused Andrews's request to proceed IFP, and ordered the case closed.

There is, however, an exception to the PLRA's three-strikes rule, allowing for filing without prepaying the $350 fee when "the prisoner is under imminent danger of serious physical injury." 28 U.S.C. § 1915(g). Andrews's complaint alleged a cause of action under 42 U.S.C. § 1983 for cruel and unusual punishment premised on the danger of contracting various communicable diseases. The California Department of Corrections and Rehabilitation ("DCR"), Andrews alleged, had an ongoing policy of not screening inmates for such diseases and instead housing contagious inmates with others without regard to the risk they pose.

We hold that the district court should have allowed Andrews's lawsuit to proceed IFP because he sufficiently alleged an "imminent danger of serious physical injury." Our holding is quite narrow: We hold only that the district court should have accepted Andrews's lawsuit without demanding an upfront $350 payment based on the allegations appearing on the face of the complaint. We express no opinion on the proper treatment of the complaint once it is docketed — and quite properly so, because the three-strikes rule is a screening device that does not judge the merits of prisoners' lawsuits.

I.

On June 6, 2003, Andrews filed the pro se complaint underlying this appeal. At that time he was incarcerated at the California State Prison, Solano ("Solano").

As Claims One and Two of the complaint, Andrews alleged that the threat he faced from contagious diseases at Solano violated the Eighth Amendment prohibition against cruel and unusual punishment. Specifically, his complaint asserted that DCR "has no policy in place to screen . . . inmates for contagious diseases upon the reception of . . . inmates into the prison system." This meant, Andrews went on to allege, that during his time at Solano he had been "placed in close proximity with inmates that the institution knew or should have known would or could infect me with disease." Andrews detailed that during the previous six months, he had been housed with five inmates with contagious diseases — two infected with HIV/AIDS, two infected with Hepatitis C, and one infected with Heliobacter pylori. He noted that "[c]urrently, there is an epidemic of hepatitis C at CSP Solano yet there are no steps taken to prevent further spread of the disease." And he alleged that prison officials failed to act after he raised these health concerns.

The complaint recounted in detail the reason why these contagious inmates posed a danger: The very close quarters in prison cells, the communal toilets, and the fact that inmates, even without permission, use their cellmates' personal hygiene items, including toothbrushes and razors, mean that "it is quite possible," according to Andrews, that communicable diseases can be transferred to non-infected inmates if inmates with communicable diseases are not segregated. Andrews also alleged that Solano's staff doctor had confirmed these means of transmission. In support of his assertions Andrews noted that he had contracted tuberculosis while incarcerated in another California prison in 1987 and likely had contracted some disease while in Solano that caused painful lumps to develop on his thighs. Based on his ongoing proximity to diseased inmates and the possibility of transmission between cellmates, Andrews alleged that "I have been subjected to harm in the past and I will be subjected to harm in the future." Andrews asked for injunctive relief requiring DCR "to test every inmate currently in the Department for contagious diseases and to house and treat each inmate for the infections that they are found to have appropriately" or, alternatively, requiring that Andrews be placed in a single-inmate cell.

Andrews's complaint also contained five causes of action not related to infectious diseases. These alleged causes of action raised various due process, equal protection, and First Amendment challenges to the operation of Solano's grievance system and to its practices for assigning employment to inmates.

When he filed his complaint Andrews sought leave to proceed IFP. A magistrate judge found that Andrews had filed while incarcerated three lawsuits later dismissed for failing to state a claim, and that the PLRA's three-strikes rule barred Andrews from proceeding IFP unless he was "under imminent danger of serious physical injury." The magistrate judge granted Andrews leave to make such a showing.

Andrews responded by noting that he had shared cells with thirty-six inmates while at Solano and knew that six of those inmates had contagious diseases. "As a result," Andrews asserted, "I have come into contact with hepatitis. . . . [N]ow my body is said to have contacted the hepatitis disease, a disease that is incurable and will be with me for life." His response also reiterated the complaint's allegations of ongoing risk:

There is a high probability of future harm since the [DCR] Director still fails to test persons brought into the institutions and still continues to house those persons in cells which have limited air flow, where the inmates housed with them may use personal items without permission to do so and thereby transfer disease.

I claim that the practice of housing inmates with contagious diseases with those who are well . . . can lead to my being infected by the various diseases that run rampant throughout the Department's institutions.

The magistrate judge found that Andrews failed to meet the "imminent danger" exception because he "does not allege he presently is housed with a contagious prisoner." The magistrate judge therefore recommended that the district court deny Andrews IFP status. Andrews opposed the magistrate judge's finding, specifying that he was housed with a hepatitis-infected inmate at the time he filed the complaint. He protested that his allegations concerning "the lack of testing means that he is subject to be housed with more contagious diseases in the future."

The district court adopted the magistrate judge's recommendation, determining that Andrews could not meet the "imminent danger" exception when he "alleged he already had contracted hepatitis and did not allege he was presently confined with a prisoner with another contagious disease." The district court judge therefore denied Andrews's application to proceed IFP and directed the clerk to close the case.

After Andrews timely filed his notice of appeal, we granted his request to proceed IFP on appeal and appointed pro bono appellate counsel. While the appeal has been pending, Andrews has been transferred to a federal immigration detention facility in Tacoma, Washington. His appellate brief asserts that he "has been advised by the [DCR] that he remains in the `custody' of the [DCR]; . . . he is informed and believes that when he is released from the Tacoma facility, he will be move to a[DCR] facility."

II.

Plaintiffs normally must pay $350 to file a civil complaint in federal district court, 28 U.S.C. § 1914(a), but 28 U.S.C. § 1915(a)(1) allows the district court to waive the fee, for most individuals unable to afford it, by granting IFP status.¹ To address concerns that prisoners proceeding IFP were burdening the federal courts with frivolous lawsuits, the PLRA altered the IFP provisions for...