MCFADDEN v. KOENIGSMANN DOCCS RHSA DOCCS ACF RN 801 RPAC RN 425 RN 128 RN 401 ACF AC DOCCS DFS DOCCS DC DOCCS CO CCS DSI DOCCS (2020)

SUMMARY ORDER

Appellant Reginald Ghaffar McFadden, proceeding pro se, appeals from the district court's order denying him in forma pauperis (“IFP”) status on the grounds that he had “three strikes” under the Prison Litigation Reform Act (“PLRA”) and had not alleged that he was “under imminent danger of serious physical injury.” 28 U.S.C. § 1915(g). We assume the parties’ familiarity with the underlying facts, the procedural history of the case, and the issues on appeal.

We review a three-strikes ruling de novo. Jones v. Smith, 720 F.3d 142, 145 (2d Cir. 2013). A prisoner who has had at least three prior actions or appeals dismissed as frivolous, malicious, or for failure to state a claim is barred from filing any new civil action or appeal IFP “unless the prisoner is under imminent danger of serious physical injury.” 28 U.S.C. § 1915(g). The district court was correct that McFadden has accumulated at least three strikes. See McFadden v. Pataki, No. 17-2632, doc. 22 (2d Cir. Dec. 21, 2017) (dismissing appeal as frivolous); McFadden v. Kooi, No. 16-1601, doc. 36 (2d Cir. Aug. 11, 2016) (same); McFadden v. Patterson, No. 10-3505, doc. 22 (2d Cir. Jan. 14, 2011) (same).

To qualify for the imminent danger exception, “the danger must exist at the time the complaint is filed,” Malik v. McGinnis, 293 F.3d 559, 562–63 (2d Cir. 2002), and it must be “fairly traceable to unlawful conduct asserted in the complaint,” Pettus v. Morgenthau, 554 F.3d 293, 299 (2d Cir. 2009) (emphasis omitted). A “conclusory” allegation of imminent danger is insufficient. See Chavis v. Chappius, 618 F.3d 162, 170 (2d Cir. 2010) (citation omitted). However, while “the feared physical injury must be serious, we should not make an overly detailed inquiry into whether the allegations qualify for the exception, because § 1915(g) concerns only a threshold procedural question, while separate PLRA provisions are directed at screening out meritless suits early on.” Id. at 169 (alteration, citation, and internal quotation marks omitted).

Here, McFadden alleged that he had ongoing heart disease, that his pacemaker battery had expired, and that the defendants refused to replace the battery. The danger existed at the time that McFadden filed his complaint, and it was fairly traceable to the defendants’ alleged misconduct. See Malik, 293 F.3d at 562–63; Pettus, 554 F.3d at 299. Accordingly, McFadden's allegations were adequate to qualify for the imminent danger exception. See Chavis, 618 F.3d at 169–70.

We have considered McFadden's remaining arguments and find them to be without merit. We therefore VACATE the order of the district court and REMAND for further proceedings.