Colorado’s second-highest court addressed for the first time earlier this month how judges should determine if an incarcerated plaintiff has shown he is in “imminent danger,” which would allow him to proceed with his lawsuit without paying the upfront fees typically required.

Under state law, prisoners are not prohibited from pursuing civil lawsuits if they are too poor to pay the initial filing fee. Instead, they may seek to proceed with partial payments, unless they have previously brought three or more frivolous or meritless lawsuits complaining about their prison conditions. That prohibition is known as the “three strikes rule.”

In an exception to the three strikes rule, however, a plaintiff may nonetheless proceed without the upfront fees if a judge determines the lawsuit warns of “imminent danger of serious physical injury.” No court cases in Colorado had previously answered how judges are supposed to gauge when an allegation crosses the threshold of “imminent danger.”

Writing for a three-member panel of the Court of Appeals, Judge W. Eric Kuhn clarified there are three factors that make an allegation sufficiently serious: specificity, imminence and an ability for courts to stop the impending injury.

“An inmate facing an imminent danger of serious physical injury can file suit seeking to prevent that harm. However, if an inmate is seeking relief that is designed to remedy past wrongs or would not alleviate the imminent danger alleged, then the claims cannot support the invocation of the imminent danger exception,” he wrote in the Jan. 11 opinion.

For instance, Kuhn added, an allegation that an inmate is about to be assaulted could be viable, whereas a lawsuit seeking “a specific food at the cafeteria” would not.

Case: Johnson v. McGrath

Decided: January 11, 2024

Jurisdiction: El Paso County

Ruling: 3-0

Judges: W. Eric Kuhn (author)

Jerry N. Jones

Stephanie Dunn

A spokesperson for the judicial branch said data across all judicial districts do not specifically capture how many prisoner lawsuits are filed each year. In Colorado’s federal trial court, litigation from incarcerated plaintiffs amounts to one-third of all civil cases.

Jabari J. Johnson has filed hundreds of lawsuits in state and federal court during his incarceration. In the process, many have been deemed frivolous, meaning he is subject to the three strikes rule that generally prohibits him from seeking an exemption to the upfront filing fee – currently set at $235.

In a lawsuit filed in January 2023, Johnson, who was housed in the Colorado Department of Corrections, alleged in a one-page, handwritten complaint that his life was in imminent danger. He claimed:

? Corrections staff labeled Johnson a “child molester” and “snitch,” increasing the risk other inmates would assault him

? Staff have placed him “around enemies”

? Staff barred him from receiving medical or dental treatment and use of a wheelchair

? There is a conspiracy to kill him because of his litigation

? Staff open other inmates’ cell doors so that they can assault Johnson

Johnson sought $20.3 million for the alleged violations of his constitutional rights.

One month after filing, El Paso County District Court Judge Gregory R. Werner threw out Johnson’s lawsuit because he accumulated more than three frivolous cases and had failed to pay the required fees. Werner did not consider whether Johnson had shown he was in imminent danger.

The Court of Appeals explained judges only need to consider a prisoner’s imminent danger, and make “whatever findings are appropriate,” if the plaintiff actually alleges imminent danger. Under the three factors the appellate panel borrowed from federal courts, Johnson’s complaint did not specifically describe an imminent danger.

“While Johnson expresses that he feels unsafe in the prison environment, general assertions of fear of assault do not support claims of imminent danger,” Kuhn wrote. “The assault allegation relates to past conduct. It is not ongoing or about to occur.”

Even if Johnson had a legitimate fear of prison staff enabling other inmates to attack him, there were no allegations that corrections officers “are currently or about to open his cell doors to have him assaulted by the other inmates,” Kuhn concluded.

The case is Johnson v. McGrath.