Johnson v. McGrath

546 P.3d 1199

2024 COA 5

Jabari J. JOHNSON, Plaintiff-Appellant,

v.Meridith MCGRATH, Defendant-Appellee.

Court of Appeals No. 23CA0469

Colorado Court of Appeals, Div. C.

Announced January 11, 2024

El Paso County District Court No. 23CV33, Honorable Gregory R. Werner, Judge

Jabari J. Johnson, Pro Se

No Appearance for Defendant-Appellee

Opinion by JUDGE KUHN

¶ 1 Plaintiff, Jabari J. Johnson, is an inmate in a Colorado Department of Corrections (DOC) facility and a frequent filer in the Colorado courts. In this action, Johnson challenges the district court’s judgment dismissing his civil complaint for failure to pay a filing fee. He contends that he alleged the imminent danger of serious physical injury exception (the imminent danger exception) to the "three strikes rule" on prisoner filings, entitling him to proceed in forma pauperis (IFP).¹

¶ 2 We hold that when an inmate is barred from proceeding IFP because of the three strikes rule, the district court must review for — but need not make a separate finding regarding — the imminent danger exception. Here, while Johnson raised the issue of imminent danger of serious physical injury, when analyzed under the test set forth below, he did not sufficiently allege the imminent danger exception. Thus, the district court did not err by denying Johnson’s motion to proceed IFP because he is barred by the three strikes rule. We affirm.

I. Background

¶ 3 Johnson’s complaint challenges conditions related to his incarceration and complains about the actions of a DOC employee. Johnson requested that the district court allow him to proceed IFP under section 13-17.5-103, C.R.S. 2023, which would allow him to move forward with his inmate lawsuit without prepaying service and filing fees.

¶ 4 Upon reviewing Johnson’s request to proceed IFP, the district court applied the three strikes rule and denied his request based on section 13-17.5-102.7(1), C.R.S. 2023. It found that Johnson had, on three or more occasions, brought civil actions based on prison conditions that had been dismissed on the grounds that they were frivolous, groundless, or malicious or failed to state a claim upon which relief may be granted. The district court then dismissed Johnson’s suit for failure to pay filing and service fees, and Johnson appealed. On appeal, Johnson contends that the district court erred by denying his request to proceed IFP because he alleged that he was in imminent danger of serious physical injury.²

¶ 5 The district court did not address section 13-17.5-102.7(2), which provides an exception to the three strikes rule for an inmate who "alleges sufficient facts which, if assumed to be true, would demonstrate that the inmate is in imminent danger of serious physical injury." Implicit in Johnson’s contention on appeal is the question whether the district court was required to make a finding on the exception to the three strikes rule.

¶ 6 Johnson has filed eight cases in the El Paso County District Court (20CV112, 20CV121, 20CV274, 21CV44, 21CV320, 22CV52, 22CV186, and 22CV208), and all have been dismissed. On September 1, 2022, a division of our court issued an opinion in Johnson v. Executive Director of the Colorado Department of Corrections, 2022 WL 4016937 (Colo. App. No. 21CA1439, Sept. 1, 2022) (not published pursuant to C.A.R. 35(e)). In that case, Johnson filed an appeal from a Fremont County District Court order dismissing his complaint for failing to pay filing fees. In affirming the order, the division noted that Johnson had filed twenty-five complaints in Fremont County in 2020 alone. Eleven of those complaints had been dismissed as frivolous, groundless, and vexatious, and fourteen had been dismissed for failure to state a claim upon which relief could be granted. There is no dispute that Johnson has accumulated more than the three strikes required by section 13-17.5-102.7(1).

II. Standard of Review and Applicable Law

[1, 2] ¶ 7 Whether a litigant is indigent and thus allowed to file a civil action without payment of costs is generally a matter committed to the trial court’s discretion. Collins v. Jaquez, 15 P.3d 299, 301 (Colo. App. 2000). The ability to proceed without paying costs "in a civil case is a privilege, not a right, fundamental or otherwise." Farmer v. Raemisch, 2014 COA 3, ¶ 12, 320 P.3d 394.

[3, 4] ¶ 8 Section 13-17.5-102.7 and several related statutes limit the trial court’s discretion to permit IFP filings in civil actions brought by prisoners. Whether the trial court properly applied those statutes is a question of law we review de novo. See Schwartz v. Owens, 134 P.3d 455, 459 (Colo. App. 2005). We also review de novo a district court’s order dismissing a case as a matter of law and questions of statutory construction. Cisneros v. Elder, 2022 CO 13M, ¶ 21, 506 P.3d 828; Rueb v. Rich-Fredericks, 2020 COA 168, ¶ 7, 486 P.3d 435.

[5] ¶ 9 "In construing a statute, our goal is to effectuate the legislature’s intent." Dep't of Revenue v. Agilent Techs., Inc., 2019 CO 41, ¶ 16, 441 P.3d 1012. In doing so, we "consider the entire statutory scheme to give consistent, harmonious, and sensible effect to all of its parts, and we construe words and phrases in accordance with their plain and ordinary meanings." Cisneros, ¶ 21 (quoting Ryser v. Shelter Mut. Ins. Co., 2021 CO 11, ¶ 14, 480 P.3d 1286). If the statutory language is clear and unambiguous, then we do not resort to other rules of statutory construction, and we presume that the General Assembly intends a just and reasonable result. Id. "We, however, are not at liberty to alter the wording of a statute. Nor may we interpret statutory language so as to render any of that language superfluous." Harvey v. Cath. Health Initiatives, 2021 CO 65, ¶ 33, 495 P.3d 935.

[6, 7] ¶ 10 Johnson appears pro se, and his complaint is difficult to read; however, "[p]leadings by pro se litigants must be broadly construed to ensure that they are not denied review of important issues because of their inability to articulate their argument like a lawyer." Jones v. Williams, 2019 CO 61, ¶ 5, 443 P.3d 56. It is not this court’s role, however, to rewrite a pro se litigant’s pleadings. Nor may we act as an advocate for a pro se litigant. See People v. Cali, 2020 CO 20, ¶ 34, 459 P.3d 516.

III. The District Court Must Review for, But Does Not Need to Make a Specific Finding Regarding, Section 13-17.5-102.7(2)

¶ 11 To address Johnson’s contention, we must first determine whether the imminent danger exception to the three strikes rule requires the district court to make explicit findings about the alleged danger.

¶ 12 Section 13-17.5-103 states that an inmate is not prohibited from filing a civil action just because "the inmate has no assets and no means by which to pay" fees. The three strikes rule in section 13-17.5-102.7(1) is an exception to that general rule:

No inmate who on three or more occasions has brought a civil action based upon prison conditions that has been dismissed on the grounds that it was frivolous, groundless, or malicious or failed to state a claim upon which relief may be granted or sought monetary relief from a defendant who is immune from such relief, shall be permitted to proceed as a poor person in a civil action based upon prison conditions under any statute or constitutional provision.

¶ 13 Section 13-17.5-103(2) is, in turn, an exception to subsection (1). It provides that an inmate may proceed in an action, notwithstanding having three strikes, without paying the filing fee "if the judge finds that the action alleges sufficient facts which, if assumed to be true, would demonstrate that the inmate is in imminent danger of serious physical injury." § 13-17.5-102.7(2).

[8] ¶ 14 As an initial matter, we conclude that a district court reviewing a motion and complaint under section 13-17.5-103 and section 13-17.5-102.7 must determine whether the imminent danger exception applies. The court should review the initial filings for assertions that, if taken as true, would demonstrate the inmate is in imminent danger of serious physical injury and would thus trigger the exception in subsection (2).³ This is so because an inmate’s ability to proceed without paying filing fees is determined be- fore a responsive pleading is filed, and, therefore, the district court must undertake that review on its own to give effect to the statute.

[9] ¶ 15 Turning to the findings themselves, the plain language of section 13-17.5-102.7 demonstrates that the district court is not required to make specific factual findings regarding the imminent danger exception in every case. However, if the district court determines that the exception applies, then it should make whatever findings are appropriate under the facts of the case.

¶ 16 Subsection (2) provides that an inmate may proceed IFP, notwithstanding the three strikes rule, if the court finds imminent danger of serious physical injury. The structure of this clause is conditional. It envisions that a judge may or may not make findings. This also tracks the purpose of subsection (2), which is an exception to an exception. There would be no reason for the court to make findings about the imminent danger of serious physical injury if the inmate hasn’t pleaded any allegations to support the exception in the first place.

¶ 17 Thus, when an inmate with three strikes makes a proper request to proceed IFP, section 13-17.5-102.7(2) requires the district court to review the initial filings to see if the inmate has alleged sufficient facts, if taken as true, to trigger the imminent danger exception to the three strikes rule. If the inmate alleges sufficient facts establishing that this exception applies, as described below, then the district court should allow the plaintiff to proceed IFP. See § 13-17.5-102.7(2). But if the plaintiff fails to allege sufficient facts, then subsection (2) does not apply, and the district court must deny the request to proceed IFP under subsection (1).

IV. Imminent Danger of...