Stine v. U.S. Fed. Bureau of Prisons

• Decision Date: 08 March 2012
• Docket Number: No. 11-1504,11-1504
• Parties: MIKEAL GLENN STINE, Plaintiff-Appellant, v. U.S. FEDERAL BUREAU OF PRISONS; DR. CHRISTOPHER WILSON, ADX; DR. DAVID ALLRED, Clinical Director; BLAKE DAVIS, Warden, ADX; MR. MUNSON, Associate Warden, ADX; A. OSAGIE, Physician Assitant, ADX; MR. SMITH, Assistant, Administrative Health Services; JOHN DOE, Unknown Defendants, Defendants - Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

MIKEAL GLENN STINE, Plaintiff-Appellant,

v. U.S. FEDERAL BUREAU OF PRISONS; DR. CHRISTOPHERWILSON, ADX; DR. DAVID ALLRED, Clinical Director; BLAKEDAVIS, Warden, ADX; MR. MUNSON, Associate Warden, ADX;A. OSAGIE, Physician Assitant, ADX; MR. SMITH, Assistant,Administrative Health Services; JOHN DOE, Unknown Defendants, Defendants - Appellees.

No. 11-1504

UNITED STATES COURT OF APPEAL TENTH CIRCUIT

Filed: March 8, 2012

(No. 1:11-CV-02665-LTB)

(D. Colo.)

ORDER AND JUDGMENT¹

Before KELLY, HARTZ, and HOLMES, Circuit Judges.

Plaintiff-Appellant Mikeal Glenn Stine, a federal prisoner proceeding pro se,² appeals from the district court's dismissal of his complaint alleging various Eighth Amendment violations, which was brought pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). Mr. Stine also requests leave to proceed in forma pauperis ("IFP") on appeal. Exercising jurisdiction under 28 U.S.C. § 1291, we grant Mr. Stine the right to proceed IFP, but nonetheless affirm the district court's order dismissing his complaint.

I. Factual and Procedural Background

Mr. Stine is a prisoner in the custody of the Federal Bureau of Prisons ("BOP"). On October 13, 2011, he filed a complaint in the U.S. District Court for the District of Colorado, alleging various Eighth Amendment claims under Bivens. Mr. Stine's complaint alleges that he was denied the medication "Omeprazole," which he claims is essential to help control his gastroesophageal reflux problems, see Aplt. Resp. to Show Cause Order at 3-4, and that, unless given appropriate treatment, he is likely to die because he has a "sliding hiatal hernia" and an egg-sized mass in his chest, both of which have acted to intensify the pain and suffering that goes along with his reflux, see Aplt. Opening Br. at 2.

However, Mr. Stine has an extensive history of filing frivolous actions in the federal courts. For this reason, the district court in a previous case imposed prospective filing restrictions on any of his future pro se complaints. See R. at 183-84 (Dist. Ct. Order of Dismissal, filed Oct. 28, 2011) (referencing Stine v. Lappin, No. 07-cv-01839-WYD-KLM, 2009 U.S. Dist. LEXIS 78373 (D. Colo. June 25, 2009)). Moreover, 28 U.S.C. § 1915(g) of the Prison Litigation Reform Act (the "PLRA") provides a statutory "three-strike" rule, whereby a prisoner who has brought three or more civil actions that have been dismissed on the grounds that they are "frivolous, malicious, or fail[] to state a claim upon which relief may be granted" is banned from proceeding in further actions IFP absent a showing of "imminent danger of serious physical injury." Mr. Stine failed to comply with the filing restrictions, and because "[he] has filed more than three actions in a court of the United States while he was incarcerated [i.e., implicating § 1915(g)] . . . that were dismissed as frivolous or for failure to state a claim," the district court dismissed his instant complaint and declined to permit him to proceed IFP. See R. at 183-84. The court concluded that he had not adequately made a showing of "imminent danger" because the record indicates that he has access to medications other than Omeprazole "for treatment of his acid . . . condition." Id. at 185; see id. at 186. Moreover, it suggested that he is "able to obtain funds when necessary from third parties" in order to pay the costs of his medication—thus, seemingly diminishing the seriousness of his allegations. Seeid. at 186.

Subsequently, Mr. Stine filed a motion to reconsider, claiming that the district court erroneously concluded that the alternative medications are adequate to control his acid reflux. In addition, he attempted to rebut the district court's conclusion that he in fact had access to sufficient funds to pay for the Omeprazole. The district court denied his motion, concluding (again) that he had not complied with the previously imposed filing restrictions, and that he "fail[ed] to assert specific fact allegations that the provision of [other available reflux medicine]" instead of Omeprazole, would support a claim of "imminent danger" under § 1915(g). Id. at 225 (Dist. Ct. Order Den. Mot. to Reconsider, filed Dec. 8, 2011).

On appeal, Mr. Stine makes general allegations concerning prison officials' indifference to his medical condition, and he challenges the district court's conclusions regarding (1) whether he adequately set forth a claim of "imminent danger" under § 1915(g) such that he can proceed IFP, and (2) the implications of his failure to comply with the previously imposed filing restrictions. See Aplt. Opening Br. at 2-2B. On November 4, 2011, we filed an order requesting Mr. Stine to show cause as to why he has not prepaid the filing fee on appeal, in light of the fact that he is a "three-striker" under § 1915(g) of the PLRA. He filed a response on November 14, 2011, which avers that he has sufficiently shown that he is in imminent danger. Attendant to the foregoing, Mr. Stine filed anapplication to proceed IFP, and we subsequently issued an order assessing fees in the form of partial payments, pending the resolution of this appeal.

II. Discussion

Generally, the PLRA "requires all prisoners appealing decisions in civil actions to pay the full amount of the filing fees [up front]." Strope v. Cummings, 653 F.3d 1271, 1273 (10th Cir. 2011). Indigent prisoners, however, are exempt from this requirement, and "usually make[] an initial partial payment and then pay[] the remainder of the filing fee in monthly installments." Id. But where a prisoner has previously filed three or more "action[s]" or "appeal[s]" in federal court, which resulted in "dismiss[als] on the grounds that [they were] . . . frivolous, malicious, or fail[ed] to state a claim upon which relief may be granted," 28 U.S.C. § 1915(g), the prisoner has "'struck out' from proceeding IFP in a new civil action or appeal." Strope, 653 F.3d at 1273 (quoting Smith v. Veterans Admin., 636 F.3d 1306, 1308-09 (10th Cir. 2011)); see Kinnell v. Graves, 265 F.3d 1125, 1127 (10th Cir. 2001) ("[T]he 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." (quoting White v. Colorado, 157 F.3d 1226, 1232 (10th Cir. 1998)) (internal quotation marks omitted)). "To meet the only exception to the prepayment requirement, a prisoner who has accrued three strikes must make specific, credible allegations of imminent danger[.]" Hafed v. Fed. Bureau ofPrisons, 635 F.3d 1172, 1176 (10th Cir. 2011) (alteration in original) (quoting Kinnell, 265 F.3d at 1127-28) (internal quotation marks omitted). Mr. Stine claims that he meets this requirement. Moreover, he argues that his previous filing restrictions should not be applied to prevent him from proceeding in this case. We address each argument in turn.

A. Imminent Danger

Allegations in the complaint of "imminent danger" must not be "vague and utterly conclusory." White, 157 F.3d at 1231; see also Davis v. Rice, 299 F. App'x 834, 835 (10th Cir. 2008) ("In making our determination, we look to the complaint, which we construe liberally and the allegations of which we must accept as true." (quoting Ibrahim v. District of Columbia, 463 F.3d 3, 6 (D.C. Cir. 2006)) (internal quotation marks omitted)). Indeed, for a prisoner to state a claim of medical deliberate indifference for purposes of overcoming the PLRA's statutory three-strike hurdle, "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,'" Hafed, 635 F.3d at 1180 (quoting White, 157 F.3d at 1232), identifying the "general nature of 'the serious physical injury' he asserts is imminent," White, 157 F.3d at 1232. However, "[allegations of past harm do not suffice; the harm must be imminent or occurring at the time the complaint is filed." Ciarpaglini v. Saini, 352 F.3d 328, 330 (7th Cir. 2003).

After reviewing Mr. Stine's complaint, and taking his allegations as true (as we must in this context), see id. ("[W]e must accept these claims as true now; they may in fact be bogus[.]"), we conclude that Mr. Stine has set forth adequate averments of imminent injuries that will occur if he is not granted relief (i.e., adequately pleaded imminent danger).³ Although Mr. Stine has a history of scurrilous and meritless filings, see infra Part II.B, the standard for assessing allegations of "imminent danger" does not necessarily depend on the past conduct of the prisoner, see generally Ciarpaglini, 352 F.3d at 330-31; Gibbs v. Cross, 160 F.3d 962, 966 (3d Cir. 1998) ("Congress [in enacting the 'three strikes' provision] was clearly concerned with continuing to afford in forma pauperis filing status to inmates who had a history suggestive of abusing the judicial system.").

Mr. Stine claims that his BOP pharmacist has repeatedly refused to fill his prescription for Omeprazole, written by his physician, Dr. Christopher Wilson. Mr. Stine further alleges in his complaint that he needs this medication to control his chronic stomach condition, which, as of late, "caus[es his] throat . . . to bleed and [is] extremely painful." R. at 149 (Pl.'s Compl., filed Oct. 13, 2011) (capitalization altered). He avers that he has been "advised that without the Omeprazole [his previous] ulcers would return and the damage to the lining of [his] esophagus could cause total and permanent loss of [his] ability to talk." Id. Mr. Stine seemingly claims that he has no way to access this medication (which he claims is the only thing that can control his condition), and that the BOP has been deliberately indifferent to his health problems. See, e.g., Aplt. Opening Br. at 2A ("[T]o save money [the] BOP pharmacist refuses to fill the prescriptions that have been written . . . ." (capitalization altered)); id. at 2C ("Unless this Court...