Akers v. Labson-Freeman

Background

Montgomery Carl Akers, a federal prisoner at the United States Penitentiary in Marion, Georgia, filed this civil-rights case without a lawyer. The court had granted him permission to proceed without prepaying the filing fee, called proceeding in forma pauperis (IFP), and had allowed him to amend his complaint.

The amended complaint named United States District Judge Edward Chen, United States District Judge Beth Labson-Freeman, Katherine Siereveld, Jamie Conover, Kathy S. Hill, and Nathan Simpkins as defendants. Akers alleged, among other things, interference with his relationships, finances, mail, and access to courts; threats and planned physical harm; denial of medication and emergency medical care for atrial fibrillation; and improper communications with federal judges.

The court later ordered Akers either to pay the filing fee or show cause why his IFP status should not be revoked under 28 U.S.C. § 1915(g). That statute generally bars a prisoner from proceeding without prepaying the filing fee if the prisoner has had three or more prior cases or appeals dismissed as frivolous, malicious, or insufficiently pleaded, unless the prisoner faced an imminent danger of serious physical injury when filing. The court found that Akers had seven prior qualifying dismissals and had not plausibly alleged that he met the imminent-danger exception.

Motion for Reconsideration

Akers moved for reconsideration of the court’s order. He did not dispute the finding that he had three or more qualifying dismissals. Instead, he argued that the court had failed to consider his allegations of physical and psychological torture, had mischaracterized his allegations about emergency medical care, and had relied on a prior related proceeding without quoting that proceeding’s order.

The court concluded that reconsideration was not warranted. It explained that allegations about damaged relationships, statements calling Akers a terrorist, interference with mail, and interference with court access did not describe a danger of physical injury. The allegation that he had been threatened with bodily harm was vague because it did not identify who made the threats, when they were made, or what the threats involved.

The court also found that Akers’s allegations about withheld medication, denied emergency care, and an attempted assault by United States Marshals were too vague or speculative. They did not establish that he faced an imminent danger of serious physical injury when he filed the case. The court further stated that a claim for psychological harm under the civil-rights statute would not necessarily constitute physical injury for purposes of Section 1915(g). It rejected Akers’s remaining arguments as either unsupported or irrelevant to the IFP issue.

Disposition

The court held that Akers had not presented new material facts or law, newly discovered evidence, clear error, manifest injustice, or an intervening change in controlling law. It also concluded that his response to the order to show cause added no facts establishing imminent danger and that he had not paid the filing fee.

Judge Jacquelyn Corley therefore denied the motion for reconsideration, revoked leave to proceed IFP under 28 U.S.C. § 1915(g), and dismissed the case without prejudice to Akers filing a new case in which he pays the filing fee. The order resolved docket number 24.