TAYLOR v. WATKINS (October 14, 2010)
Corey Taylor is an inmate in Illinois prison. He claims that his jailers violated his civil rights. Among other things, he says that they contaminate his food, withhold his mail, and even beat him. He filed suit under § 1983 and requested permission to proceed in forma pauperis (IFP). This is not the first time that Taylor has made this sort of allegation. In fact, Taylor has three "strikes" (that is, he has filed at least three prior actions against government entities or employees that have been dismissed as malicious, frivolous, or for failure to state a claim). He therefore cannot proceed in forma pauperis under § 1915A unless he meets the in "imminent danger of serious physical injury" exception. He did allege imminent danger but the defendants challenged the allegation. Judge Murphy (S. D. Ill.) held an evidentiary hearing, concluded that Taylor was not in imminent danger, denied IFP status, and dismissed the case when Taylor failed to pay the fee. Taylor appeals and requests permission to proceed IFP on appeal.
In their opinion, Judges Kanne, Wood, and Hamilton denied his request to proceed IFP and gave notice that the appeal would be dismissed if Taylor failed to pay the docketing fee within 14 days. The Court cited the Third Circuit's distinction between challenged and unchallenged imminent danger allegations. If the allegation is unchallenged, it is accepted as true. If the defendants challenge the allegation of imminent danger, however, the court must resolve that question before proceeding. The Court stated that its decision in Ciarpaglini is not to the contrary. There, the defendants did not deny the allegations -- they simply argued that the allegations did not meet the imminent danger threshold. The district court did the proper thing here in conducting a hearing to resolve the allegations of imminent danger.