Martin v. Shelton
Decision Date | 24 February 2003 |
Docket Number | No. 02-2770.,02-2770. |
Citation | 319 F.3d 1048 |
Parties | Lawrence MARTIN, Plaintiff-Appellant, v. Roger SHELTON, Lt., Maximum Security Unit; John Kliener, Major, Maximum Security Unit, Defendants — Appellees. |
Court | U.S. Court of Appeals — Eighth Circuit |
John Wesley Hall, Jr., Little Rock, AR, for appellant.
C. Joseph Cordi, Jr., AAG, Little Rock, AR, for appellee.
Counsel who represented the appellant was John Wesley Hall, Jr. of Little Rock, AR.
Counsel who represented the appellee was C. Joseph Cordi, Jr., AAG, of Little Rock, AR.
Before LOKEN, RILEY, and SMITH, Circuit Judges.
Arkansas inmate Lawrence Martin filed this 42 U.S.C. § 1983 action pro se against two members of the Arkansas Department of Correction's Maximum Security Unit staff, alleging that defendants violated his constitutional right to be free from cruel and unusual punishment by forcing him to work in thirty-degree weather without warm clothing on February 21, 2001. Martin subsequently amended his complaint to add a claim that defendants forced him to work outside on July 26, 2001, in humid, 98-degree weather despite his high blood pressure condition. Defendants moved for summary judgment. As to the first occasion, defendants submitted evidence that Martin came to work without warm clothing, quit working before staff could retrieve a coat for him, and was placed on disciplinary review status for refusing to work. As to the second occasion, defendants submitted evidence that Martin quit working, was again put on disciplinary review for that reason, and showed no signs of physical distress that day. Moreover, his medical records show that he saw a nurse practitioner the next day and made no complaint consistent with his allegation that he had quit working because he feared a heart attack or stroke from working in the heat.
The district court granted summary judgment dismissing the amended complaint, concluding that defendants were entitled to qualified immunity with respect to the February 2001 incident, and that Martin had failed to exhaust his prison remedies with respect to the July 2001 incident, as 42 U.S.C. § 1997e requires. Martin appeals. We affirm.
The Prison Litigation Reform Act of 1996 enacted what is commonly referred to as the "three strikes" provision, codified at 28 U.S.C. § 1915(g). This statute provides that an inmate who has had three prior actions or appeals dismissed as frivolous, malicious, or for failure to state a claim may not proceed in a civil action in forma pauperis "unless the prisoner is under imminent danger of serious physical injury." The statute's bar does not preclude the inmate from filing additional actions but does deny him the advantages of proceeding in forma pauperis. In this case, Martin had filed at least three frivolous civil actions prior to this action, but he was permitted to proceed in forma pauperis in the district court and on appeal, without paying the required filing fees. In our view, this was error because he did not sufficiently allege the kind of imminent danger of serious physical injury that falls within the exception to 28 U.S.C. § 1915(g).
This Court and several other circuits have concluded that the requisite imminent danger of serious physical injury must exist at the time the complaint or the appeal is filed, not when the alleged wrongdoing occurred. See Ashley v. Dilworth, 147 F.3d 715, 717 (8th Cir.1998); Abdul-Akbar v. McKelvie, 239 F.3d 307, 312 (3rd Cir.2001) (en banc) ( ). Moreover, the exception focuses on...
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...physical injury at the time of filing. See Johnson v. Warner , 200 F. App'x 270, 272 (4th Cir. 2006) (quoting Martin v. Shelton , 319 F.3d 1048, 1050 (8th Cir. 2003) ) (holding that "vague, speculative, or conclusory allegations are insufficient to invoke the exception of § 1915(g) ; rather......
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...v. Litscher, 337 F.3d 781, 782 (7th Cir.2003), just as working in inclement weather may not be “danger” at all, Martin v. Shelton, 319 F.3d 1048, 1050 (8th Cir.2003). Courts also reject imminent danger claims when a prisoner alleges only a past injury that has not recurred. See, e.g., Abdul......
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...and recommendation adopted, CIV.A. 11-971, 2011 WL 4056110 (W.D. Pa. Sept. 13, 2011)(emphasis added). See, e.g., Martin v. Shelton, 319 F.3d 1048, 1050 (8th Cir. 2003) (allegations that defendants forced plaintiff to work outside in inclement conditions on two occasions five months apart di......
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