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Johnson v. McGrath.

2024 COA 5. No. 23CA0469. Inmate Lawsuits—In Forma Pauperis—Successive Claims—Imminent Danger of Serious Physical Injury—Court Findings.

January 11, 2024

Johnson is an inmate in a Colorado Department of Corrections (DOC) facility and is a frequent filer in Colorado courts. Here, Johnson filed a complaint concerning conditions related to his incarceration and the actions of a DOC employee. He requested that the district court allow him to proceed in forma pauperis (IFP) under CRS § 13-17.5-103, which would allow his lawsuit to proceed without his prepaying service and filing fees. The district court applied the CRS § 13-17.5-102.7(1) “three strikes rule” and denied Johnson’s request, finding that Johnson had, on three or more occasions, brought civil actions based on prison conditions that were dismissed on grounds that they were frivolous, groundless, or malicious, or failed to state a claim upon which relief may be granted. The district court dismissed the complaint for failure to pay a filing fee.

On appeal Johnson argued that the imminent danger of serious physical injury exception (the imminent danger exception) to the three strikes rule on prisoner filings entitled him to proceed IFP. The court of appeals held that when an inmate is barred from proceeding IFP because of the three strikes rule, the district court must review for the imminent danger exception but does not need to make a separate finding regarding that exception. To successfully allege the CRS § 13-17.5-102.7(2) imminent danger exception, (1) the serious physical injury allegation must be specific, (2) the specifically alleged danger must be imminent, and (3) the allegations must show a nexus between the relief claimed and the imminent serious physical injury allegation. Here, there is no dispute that Johnson has accumulated more than the three strikes required by CRS § 13-17.5-102.7(1). Further, Johnson raised but failed to sufficiently allege the imminent danger exception. Therefore, the district court did not err by denying Johnson’s motion to proceed IFP because he is barred by the three strikes rule.

The judgment was affirmed.

Official Colorado Court of Appeals proceedings can be found at the Colorado Court of Appeals website.

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