Leventhal v. Tomford

Background

Howard E. Leventhal, who was incarcerated at Federal Prison Camp Duluth, had applied to proceed in the case without paying the full filing fee upfront. That status, commonly called proceeding in forma pauperis, allows an incarcerated litigant to pay the filing fee in installments. The court had previously granted his application.

The defendants later argued that Leventhal was barred from that status by the Prison Litigation Reform Act’s “three strikes” rule, 28 U.S.C. § 1915(g). That rule generally prevents a prisoner from proceeding without prepaying the filing fee after three or more earlier federal cases or appeals were dismissed as frivolous, malicious, or for failure to state a claim, unless the prisoner faced an imminent danger of serious physical injury.

The court’s analysis

The defendants provided records of at least six lawsuits or appeals Leventhal filed while incarcerated. The court determined that five clearly counted as strikes because they had been dismissed as frivolous or for failure to state a claim. The court therefore concluded that Leventhal was ineligible to proceed without prepaying the filing fee unless the imminent-danger exception applied.

The court found that exception did not apply. Leventhal’s amended complaint referred to an “escalating and imminent failure” involving surgery but provided no supporting facts or details. He also alleged that his medical conditions created a substantially higher risk of death. The court stated that a general increased risk caused by medical conditions was not an imminent risk of death and that the transfer he requested would not eliminate that risk.

Leventhal also raised concerns about a urethral stricture, kidney stones, and a possible rupture. The court found those allegations speculative and unsupported by credible medical evidence. It noted that a prison doctor had prescribed potassium citrate on the day Leventhal filed the lawsuit, but Leventhal did not pick up the prescription. The court also found that a past kidney-stone incident and an unsupported possibility of future injury did not establish imminent danger.

Disposition

Judge Katherine Menendez granted the defendants’ Motion to Reconsider. The court vacated in part its earlier order granting Leventhal permission to proceed without prepaying fees or costs and denied Leventhal’s application for that status. The court stated that no other portion of the earlier order was affected.

The court ordered Leventhal to pay the full $350 filing fee, minus the $15.85 he had already paid, within 14 days of the order. It stated that failure to pay the full amount would result in a recommendation of dismissal for failure to prosecute. If he paid the full fee, the defendants would have 14 days to respond to his motion for a temporary restraining order and 21 days to respond to his amended complaint.