Akers v. Labson-Freeman

Background

Montgomery Carl Akers, a federal prisoner proceeding without a lawyer, filed this civil-rights action against United States District Judges Edward Chen and Beth Labson-Freeman, Katherine Siereveld, Jamie Conover, Kathy S. Hill, and Nathan Simpkins. He filed an amended complaint after the court granted him permission to amend and allowed him to proceed without paying the filing fee.

Akers alleged that some defendants interfered with his relationships, property, communications, mail, medical care, and access to the courts. He also alleged that Siereveld communicated with federal judges about him and that Judges Chen and Labson-Freeman engaged in improper communications and interfered with his ability to proceed without paying filing fees.

Legal standard

Under 28 U.S.C. § 1915(g), a prisoner generally may not proceed without paying the filing fee if, on three or more earlier occasions while incarcerated or detained, the prisoner brought an action or appeal that was dismissed as frivolous, malicious, or for failure to state a claim. An exception applies if the prisoner plausibly alleges that he faced imminent danger of serious physical injury when he filed the case.

The court explained that it could consider the three-dismissal rule on its own initiative, but had to notify Akers of the earlier dismissals and give him an opportunity to respond before revoking his fee waiver.

Court’s analysis

The court found that Akers had at least seven qualifying earlier dismissals. It noted that two earlier cases in this district had revoked his fee-waiver status under Section 1915(g), and that Akers had not disputed in those proceedings that the listed dismissals counted as qualifying dismissals or appealed those judgments. The court therefore found no basis to question the prior determinations that he had three or more qualifying dismissals.

The court also determined that Akers had not plausibly alleged imminent danger of serious physical injury when he filed this action. Allegations about interference with filing fees, relationships, mail, and court proceedings did not describe a danger of physical injury. His allegation that he was threatened with bodily harm was vague because he did not identify who made the threats, when they were made, or what they involved. His allegations concerning withheld medication, denial of emergency care for atrial fibrillation, and a possible assault by United States Marshal personnel were also too vague or speculative to show an imminent danger at the time of filing.

Order

The court ordered Akers, by May 31, 2024, either to pay the filing fee or show cause—explain why—his fee-waiver status should not be revoked under 28 U.S.C. § 1915(g). The court stated that failure to do so will result in dismissal of the case without prejudice to refiling a new action in which Akers pays the filing fee. The order did not decide the underlying civil-rights claims.