Akers v. Chen
- Beth Freeman
- 5:22-cv-05555
- U.S. District Court · Northern District of California
- 3
In Akers v. Chen, Judge Freeman granted an extension but denied three other motions while requiring a response about Montgomery Carl Akers’s filing-fee status.
Montgomery Carl Akers, whose motion for a second extension was granted and whose other motions were denied; the underlying defendants were not affected by a merits ruling in this order.
What happened
In Montgomery Carl Akers v. E. Chen, et al., a federal prisoner representing himself challenged an order questioning whether he could proceed without paying the filing fee. The court had identified possible grounds to revoke that status because of earlier lawsuits and found that his complaint did not show imminent danger when filed.
Akers asked to file his response under seal and to contact a private investigator to gather statements about current prison conditions. The court denied those motions as unnecessary because only challenges to the earlier dismissals counted as strikes were relevant. It also denied his request for a status conference and help finding a lawyer.
Judge Beth Labson Freeman granted Akers’s second request for more time. He must respond within 28 days of the order, and his response must address only whether the earlier dismissals should count as strikes.
The detailed version
- Akers v. Chen · No. 5:22-cv-05555
- Beth Freeman
- June 21, 2023
Background
Montgomery Carl Akers, a convicted and sentenced federal prisoner confined at USP Marion in Illinois, filed this case without a lawyer. The opinion states that he brought civil-rights claims under 42 U.S.C. § 1983 against a state court judge and claims under Bivens against a district court judge and several federal employees.
The court had previously ordered Akers to explain why his status allowing him to proceed without paying the filing fee should not be revoked under 28 U.S.C. § 1915(g). That statute can restrict a prisoner from proceeding without paying the fee when the prisoner has at least three earlier cases dismissed for failure to state a valid claim or as frivolous or malicious, unless the prisoner was in imminent danger of serious physical harm when the new complaint was filed. The court had found that Akers’s complaint did not establish that danger at the time of filing and allowed him to challenge whether the earlier dismissals should count as strikes. The court had already granted one extension, making his response due May 31, 2023.
Motions
Akers moved to file his response under seal. He said he planned to submit sworn statements about current conditions in the Communication Management Unit at USP Marion and feared retaliation if the statements were public. He also requested an order allowing immediate contact with a private investigator to gather those statements.
The court denied both motions as unnecessary. It explained that imminent danger is assessed when the complaint is filed, so conditions at an earlier or later time were not relevant to the filing-fee analysis. The court stated that it had already determined the complaint did not establish imminent danger and that it would consider only challenges to the prior dismissals being counted as strikes.
Akers also had moved for a status conference and assistance recruiting counsel. The court denied that motion as unnecessary and premature because the filing-fee issue had to be resolved first and did not require a hearing.
Ruling
Judge Beth Labson Freeman granted Akers’s motion for a second extension of time to respond to the court’s order to show cause. The response was due no later than 28 days from the date of the order and had to be limited to challenges concerning whether Akers’s prior dismissals counted as strikes under § 1915(g).
The court denied Akers’s motions for a status conference and assistance recruiting counsel, to file his response under seal, and for contact with his private investigator. The order terminated Docket Nos. 7, 17, 18, and 19. The opinion did not decide whether Akers’s filing-fee status would ultimately be revoked or whether his underlying civil-rights claims were valid.
Read the full 3-page opinion on CourtListener, the free public archive maintained by the Free Law Project.