JOHNSON v. NUNEZ (2021)

United States Court of Appeals, Tenth Circuit.2021-07-02No. No. 21-1108

Summary · law.co

Holding. The court affirmed the district court's dismissal of Johnson's complaint for his failure to comply with imposed filing restrictions, and denied his motion to proceed on appeal without prepaying fees.

Jabari Johnson, a Colorado prisoner, appealed the district court's dismissal of his civil rights lawsuit. The district court dismissed the case because Johnson failed to comply with filing restrictions that had been imposed in 2020 due to his pattern of abusive litigation—he had filed over 100 lawsuits in district court and more than 30 appeals in the appellate court. The restrictions required Johnson to either prepay filing fees or obtain court approval to proceed without paying, and to submit a notarized affidavit confirming the suit was not meant to harass defendants.

Johnson sought to appeal without prepaying fees under an exception for prisoners facing imminent danger of serious physical injury, claiming he had been denied a medically necessary wheelchair and access to ADA-compliant shower facilities. Although the court acknowledged that denial of a medically necessary wheelchair can qualify as imminent danger, it found that Johnson's own concession that he violated the filing restrictions made the dismissal proper. The court therefore upheld the dismissal and required Johnson to prepay his appellate filing fees.

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

Key issues

Whether dismissal for violating court-imposed filing restrictions constitutes an abuse of discretion
Whether a prisoner's claim of imminent danger excuses non-compliance with filing requirements
Standards for imposing sanctions on prisoners with histories of abusive litigation

Procedural posture

Johnson appealed the district court's dismissal of his civil rights action for non-compliance with filing restrictions, proceeding pro se.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

ORDER AND JUDGMENT **

Jabari J. Johnson, a Colorado prisoner proceeding pro se, appeals from the district courts dismissal of his lawsuit for failure to comply with previously imposed filing restrictions. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.

As a different panel of this court noted in a recent order affirming the dismissal of substantially similar claims, Mr. Johnson has filed more than 100 lawsuits in the district court and more than 30 appeals in this court. See Johnson v. Little, Nos. 20-1335, 20-1370, No-1389, ––– Fed.Appx. ––––, ––––, ––––, 2021 WL 1561337, at *1, *5 (10th Cir. Apr. 21, 2021). Those actions involved claims that, among other things, prison officials deprived Mr. Johnson of a medically necessary wheelchair, thereby forcing him to “scoot and crawl on the floor.” Id. at –––– – ––––, 2021 WL 1561337, at *2–3.

Mr. Johnson has renewed this claim in the instant lawsuit, contending that prison officials have deprived him of a medically necessary wheelchair, denied him access to an ADA-mandated shower cell, limited his access to law library materials, and told other inmates that Mr. Johnson was “a child molester and snitch,” thereby endangering his safety. 1 R. 7. The district court dismissed the lawsuit on the basis that Mr. Johnson failed to comply with filing restrictions the court imposed in March 2020 due to Mr. Johnsons abusive litigation. Johnson v. Nunez, No. 21-cv-00730-GPG, ECF No. 3 (D. Colo. Mar. 15, 2021) (unpublished); see also Johnson v. Hawkins, No. 19-cv-03730-LTB, ECF No. 3 at 10–11 (D. Colo. Mar. 4, 2020) (unpublished) (setting out restrictions).

“We review for an abuse of discretion the district courts decision to impose the sanction of dismissal for failure to follow court orders and rules.” Gripe v. City of Enid, 312 F.3d 1184, 1188 (10th Cir. 2002).

The district court did not abuse its discretion in dismissing Mr. Johnsons claims for failure to comply with the filing restrictions. Mr. Johnson has received ample notice of the filing restrictions against him, which include requirements that before filing any action he (1) either prepay the filing fee or receive approval from the district court to proceed IFP and (2) provide a notarized affidavit that the lawsuit was not instituted to harass defendants. Johnson, No. 19-cv-03730-LTB, ECF No. 3 at 10–11. As the district court noted, Mr. Johnson did not comply with these requirements. The district court therefore acted well within its discretion in dismissing the complaint.

The district court also denied Mr. Johnson leave to proceed IFP on appeal. Because at least three of Mr. Johnsons prior suits have been dismissed as frivolous, he must either prepay costs and fees or demonstrate that he “is under imminent danger of serious physical injury.” 28 U.S.C. § 1915(g). On April 5, 2021, this court directed Mr. Johnson to show cause why he should not be required to prepay the entire filing fee. On May 26, 2021, Mr. Johnson moved for leave to proceed IFP in this court, arguing that he is under imminent danger of serious injury because he has been denied a doctor-mandated wheelchair and because his lack of access to ADA shower cells has caused open sores on his body.

This court has recognized that the failure to provide a prisoner with a medically necessary wheelchair satisfies the imminent danger exception to the prepayment requirement under the PLRA. Fuller v. Wilcox, 288 F. Appx 509, 511 (10th Cir. 2008) (unpublished). However, that exception does not relieve Mr. Johnson of his obligation to provide a coherent and rational argument as to why the district court erred in dismissing the complaint. Mr. Johnson concedes that he did not comply with the filing restrictions imposed by the district court. As discussed above, this failure justified the district courts dismissal. Accordingly, we deny his motion to proceed IFP and direct Mr. Johnson to pay the full filing fee. We also remind Mr. Johnson of this courts admonition that future appeals from district court cases in which he has made no demonstrable attempt to comply with district court filing restrictions may result in sanctions from this court. See id., 2008 WL 2961388 at *5.

Paul J. Kelly, Jr., Circuit Judge