Akers v. Chen

Background

Montgomery Carl Akers, a state prisoner proceeding without a lawyer, brought this civil-rights action under 42 U.S.C. § 1983 against a state court judge and under the implied remedy recognized in Bivens against a district court judge and several federal employees. A magistrate judge initially granted Akers permission to proceed without prepaying the filing fee.

After reassignment, the court determined that Akers was a “three-strikes” litigant under 28 U.S.C. § 1915(g). That statute generally prevents a prisoner who has had three qualifying cases or claims dismissed from proceeding without prepaying the filing fee unless the complaint shows that the prisoner was in imminent danger of serious physical injury when the action was filed. The court ordered Akers to explain why his fee status should not be revoked.

The Parties’ Positions

Akers did not dispute that he had three prior strikes. He argued that the court had no legitimate reason to reconsider his fee status because the magistrate judge had already granted his application. He also argued that his allegations of physical and psychological torture, including possible attacks by inmates, were enough to establish imminent danger.

Court’s Ruling

The court rejected both arguments. It explained that the magistrate judge had granted the application but had not made a specific finding that Akers satisfied the imminent-danger exception. The court also stated that Ninth Circuit precedent permits district courts to raise the three-strikes issue on their own and does not require waiting for a defendant to move for revocation.

The court found that Akers’s allegations that defendants were conspiring to isolate him and arrange an attack were unsubstantiated, speculative, vague, and conclusory. The court therefore concluded that the allegations did not plausibly establish imminent danger of serious physical harm when Akers filed the action.

The court revoked Akers’s permission to proceed without prepaying the filing fee and directed him to pay the full $402 filing fee within 14 days. The order states that failure to pay will result in dismissal of the action.