Akers v. Chen
- Beth Freeman
- 5:22-cv-05555
- U.S. District Court · Northern District of California
- 7
In Akers v. Chen, Judge Freeman ordered Montgomery Carl Akers to explain why his fee waiver should not be revoked under the federal three-strikes rule.
Montgomery Carl Akers is required to respond within 28 days to try to preserve his status allowing him to proceed without paying the filing fee. If he does not respond, that status will be revoked and the filing fee will become due; nonpayment may lead to dismissal without prejudice.
What happened
Montgomery Carl Akers, a federal prisoner representing himself, sued state and federal officials. He had been allowed to proceed without paying the filing fee, but the court found that at least three of his earlier cases appeared to count as dismissals under the federal three-strikes rule.
The court also found that Akers’s allegations of a possible attack and other harm were speculative and did not plausibly show that he faced serious physical danger when he filed this case. The court therefore concluded that the exception for prisoners facing imminent danger did not apply based on the current record.
Judge Beth Labson Freeman gave Akers 28 days to explain why his fee waiver should not be revoked. The court did not revoke it in this order; if Akers does not respond, the waiver will be revoked, the filing fee will become due, and the case may be dismissed without prejudice if the fee is not paid.
The detailed version
- Akers v. Chen · No. 5:22-cv-05555
- Beth Freeman
- Mar. 13, 2023
Background
Montgomery Carl Akers, a convicted and sentenced federal prisoner confined at the United States Penitentiary in Marion, Illinois, filed this civil-rights action without a lawyer. He sued a state court judge under 42 U.S.C. § 1983 and sued a federal district judge and several federal employees under a damages remedy recognized in some constitutional cases. The court had previously allowed him to proceed without paying the filing fee.
The three-strikes rule
The Prison Litigation Reform Act generally prevents a prisoner from proceeding without paying the filing fee if, on three or more earlier occasions while incarcerated, the prisoner brought a federal action or appeal that was dismissed as frivolous, malicious, or for failure to state a claim. An exception applies if the prisoner was facing an imminent danger of serious physical injury when the complaint was filed.
The court reviewed an earlier related proceeding and identified seven prior dismissals that appeared to qualify as strikes. Those dismissals included cases dismissed for failure to state a claim, as frivolous, or both. The court also noted that Akers had recently been found subject to the three-strikes bar in another federal district. Based on this history, the court found that Akers had at least three qualifying strikes.
Imminent-danger exception
The court considered whether Akers qualified for the exception based on allegations that officials planned to isolate him, deny him medication for atrial fibrillation, and arrange for other prisoners to attack him while he slept. The court found that his allegations about earlier communications and alleged conspiracies did not show imminent danger at the time he filed the action. It further found that the alleged plan to have unidentified prisoners attack him was vague, unsupported, and speculative. The court concluded that the allegations did not plausibly establish an imminent danger of serious physical injury.
Order
The court ordered Akers to file a response within 28 days explaining why his status allowing him to proceed without paying the filing fee should not be revoked under 28 U.S.C. § 1915(g). The order did not itself revoke that status. If Akers does not respond within the allowed time, the court stated that his status will be revoked and the full filing fee, or remaining balance, will become immediately due. If he does not timely pay the fee, the case will be dismissed without prejudice for failure to pay the filing fee.
Read the full 7-page opinion on CourtListener, the free public archive maintained by the Free Law Project.