Showing of imminent danger of serious physical injury prevails in Sixth Circuit appeal

Client(s) Vandiver, Jerry

Jones Day Chicago scored a victory on March 28, 2011, in a Sixth Circuit appeal argued only three weeks earlier. Our client, an inmate in a Michigan correctional facility and a diabetic who suffers from hepatitis C, filed a pro se Section 1983 civil-rights claim alleging that prison officials failed to provide him the medical care prescribed by prison doctors in retaliation for his having publicly complained about the officials’ failure to provide prisoners with needed medical treatment. The district court dismissed our client’s complaint pursuant to the “three strikes” provision of the Prison Litigation Reform Act, finding that he had filed three previous actions qualifying as “strikes” under the rule and that he had made “no showing of imminent danger of serious physical injury,” which would have exempted him from the three-strikes rule. (The district court made this finding despite the fact that our client’s feet had been amputated as a result of complications from diabetes while his complaint was pending.)

Jones Day accepted the Sixth Circuit’s request to take the appeal pro bono. In the briefs, the Chicago Office argued, among other things, that the imminent-danger exception is a pleading requirement and that our client’s complaint, liberally construed, appropriately “alleged” imminent danger. The three-judge panel agreed, ultimately reversing and remanding the case to the district court.

Notably, the panel complimented Jones Day for the quality of our appellate work and for our willingness to take on this and other Sixth Circuit appeals. Judge Martin commented that the Sixth Circuit’s appointment of a Jones Day Chicago partner “offer[ed] a lot of help in this area for which we are deeply appreciative … [and gave] these people a chance to have their issues argued.”