United States District Court, E.D. Missouri, Eastern Division
ARTHUR T. REED, Plaintiff,
DR. UNKNOWN BRADSHAW, Defendant.
MEMORANDUM AND ORDER
CATHERINE D. PERRY UNITED STATES DISTRICT JUDGE
matter is before the Court on plaintiff Arthur T. Reed's
motion for reconsideration of this Court's March 22, 2017
order denying him leave to proceed in forma pauperis
on the basis of 28 U.S.C. § 1915(g). The motion will be
filed his complaint on March 20, 2017, naming as defendant
Dr. Unknown Bradshaw, a dentist. Therein, he alleged that
defendant waited too long to prescribe antibiotics and
extract certain teeth. Plaintiff alleged that, during the
delay, he suffered pain and other forms of distress. He also
alleged that the delay “could have” caused other
serious health issues. (Docket No. 1 at 20). Plaintiff sought
a total of $150, 000 in “actual damages”
“to compensate Plaintiff for his mental and emotional
injuries, pain, suffering, and lost [sic].”
(Id. at 21). He also sought a total of $125, 000 in
punitive damages “to punish and deter the Defendant
from repetitive conduct and blant [sic] disregard
for Plaintiff's constitutional and statutory rights,
” and he sought to recover fees and costs.
(Id.) Nowhere in the complaint did plaintiff allege
that he had any presently occurring dental or medical issues,
nor did he seek to compel defendant to provide care for any
current problem. Instead, plaintiff alleged, and sought
monetary damages for, past harm only.
order denying plaintiff's motion for leave to proceed
in forma pauperis, the Court cited 28 U.S.C. §
1915(g) and the provisions thereof, and noted that plaintiff
had “three strikes.” The Court carefully reviewed
the complaint, and concluded that it contained no allegations
tending to show that plaintiff was under imminent danger of
serious physical injury. The Court denied plaintiff leave to
proceed in forma pauperis, and directed him to pay
the full amount of the filing fee or face dismissal of his
now moves for reconsideration of that order. In support, he
sets forth new allegations of ongoing dental issues that
cause constant pain and render him unable to eat and sleep,
and argues that he should be allowed to proceed in forma
pauperis under § 1915(g)'s imminent danger
Prisoner Litigation Reform Act provides, in relevant detail:
In no event shall a prisoner bring a civil action or appeal a
judgment in a civil action or proceeding under this section
if the prisoner has, on 3 or more prior occasions, while
incarcerated or detained in any facility, brought an action
or appeal in a court of the United States that was dismissed
on the grounds that it is frivolous, malicious, or fails to
state a claim upon which relief may be granted, unless
the prisoner is under imminent danger of serious physical
28 U.S.C. § 1915(g) (emphasis added).
noted above, the complaint solely alleged past harm. It
therefore contained nothing sufficient to trigger §
1915(g)'s imminent danger exception. See Ashley v.
Dilworth, 147 F.3d 715, 717 (8th Cir. 1998) (allegations
that the prisoner may have faced imminent danger in the past
are insufficient to trigger the imminent danger exception to
new allegations of ongoing dental issues cannot constitute
credible claims that he is under imminent danger of serious
physical injury. A prisoner seeking to file under '
1915(g)'s imminent danger exception “is only
eligible to proceed IFP if he is in imminent danger at the
time of filing.” Id; see also Martin v.
Shelton, 319 F.3d 1048, 1050-51 (8th Cir. 2003)
(requisite imminent danger of serious physical injury must
exist at time complaint or appeal is filed). Other circuits
to have addressed the issue have concluded that §
1915(g)'s use of the present tense means that the
prisoner must have set forth allegations amounting to
imminent danger at the time he filed the complaint or appeal.
See Andrews v. Cervantes, 493 F.3d 1047, 1053-54
(9th Cir. 2007); Ciarpaglini v. Saini, 352 F.3d 328,
330 (7th Cir. 2003); Malik v. McGinnis, 293 F.3d
559, 562-63 (2d Cir. 2002); Abdul-Akbar v. McKelvie,
239 F.3d 307, 313 (3d Cir. 2001) (en banc); Medberry v.
Butler, 185 F.3d 1189, 1193 (11th Cir. 1999);
Baños v. O'Guin, 144 F.3d 883, 885 (5th
Cir. 1998) (per curiam).
will not be permitted to proceed in forma pauperis
in this case. This does not preclude plaintiff from
proceeding with this case after paying the filing fee, nor
does it preclude him from filing a civil action to set forth
claims that have arisen since the instant complaint was
IT IS HEREBY ORDERED that Arthur Thomas
Reed's motion for ...