SIERRA v. DIRECTOR FOR DEPARTMENT OF CORRECTIONS AND REHABILITATION (2021)

United States Court of Appeals, Ninth Circuit.2021-04-27No. No. 17-16055

Summary · law.co

Holding. The court reversed the district court's denial of Sierra's motion to proceed in forma pauperis and remanded for reconsideration, finding that his allegations of untreated serious back pain and denied wheelchair access adequately alleged imminent danger under the statutory exception, and that his release from prison during appeal requires fresh consideration without application of the three-strikes rule.

Kenneth Sierra, a former California prisoner, appealed pro se from a district court's denial of his motion to proceed in forma pauperis in a civil rights lawsuit under 42 U.S.C. § 1983. The district court had rejected his application based on the three-strikes rule under 28 U.S.C. § 1915(g), which bars indigent litigants with three prior strikes from proceeding without paying filing fees unless they face imminent danger of serious physical harm. Sierra argued that prison officials failed to treat his chronic lower back pain for years and denied him wheelchair access in his cell, conditions he contended constituted imminent danger.

The appellate court found that Sierra's allegations sufficiently described ongoing danger to satisfy the statutory exception to the three-strikes rule. The court noted that a prisoner who alleges prison officials engaged in practices causing past injury while continuing those practices meets the "ongoing danger" standard. Additionally, because Sierra had been released from prison during the appeal, the three-strikes rule no longer applied to him, and the district court was instructed to reconsider his application on remand without applying that restriction.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

Application of the three-strikes bar to in forma pauperis motions
Whether allegations of untreated medical conditions constitute 'imminent danger of serious physical harm'
Effect of prisoner release on pending in forma pauperis applications

Procedural posture

Sierra appealed pro se from a district court order denying his motion to proceed in forma pauperis in a § 1983 civil rights action.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

MEMORANDUM **

Former California state prisoner Kenneth A. Sierra appeals pro se from the district courts order denying his motion to proceed in forma pauperis (“IFP”) in his 42 U.S.C. § 1983 action alleging various constitutional claims. We have jurisdiction under 28 U.S.C. § 1291. We review de novo. Andrews v. Cervantes, 493 F.3d 1047, 1052 (9th Cir. 2007). We reverse and remand.

The district court denied Sierras application to proceed IFP on the basis that Sierra has three prior strikes and has not alleged imminent danger of serious physical harm. See 28 U.S.C. § 1915(g). However, Sierra sufficiently alleged that he was under imminent danger of serious physical harm because prison officials have failed to treat his serious lower back pain for many years and denied him use of a wheelchair in his cell. These allegations are sufficient to satisfy the “imminent danger” exception. See Andrews, 493 F.3d at 1055-57 (an exception to the three-strikes rule exists where “the complaint makes a plausible allegation that the prisoner faced ‘imminent danger of serious physical injury’ at the time of filing[;]” “a prisoner who alleges that prison officials continue with a practice that has injured him ․ in the past will satisfy the ‘ongoing danger’ standard”).

While this appeal was pending, Sierra was released from prison. Because Sierra is no longer a “prisoner” for purposes of § 1915(g) and the three-strikes rule no longer applies to him, the district court on remand “should reconsider anew any IFP application.” Moore v. Maricopa County Sheriffs Office, 657 F.3d 890, 893 fn.3 (9th Cir. 2011).

We do not consider matters not specifically and distinctly raised and argued in the opening brief, or arguments and allegations raised for the first time on appeal. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).

Defendants’ request for judicial notice (Docket Entry No. 46) is granted. Sierras motion requesting transfer and transport (Docket Entry No. 56) is denied.

REVERSED and REMANDED.

Chief Judge Thomas respectfully dissents and would affirm the judgment of the district court.