D. Colo., D.C. No. 1:15-CV-01293-LTB.
Before GORSUCH, McKAY, and BACHARACH, Circuit Judges.
ORDER AND JUDGMENT [*]
Robert E. Bacharach, Circuit Judge
Mr. Mikeal Stine is a federal prisoner subject to filing restrictions in the District of Colorado. Notwithstanding these restrictions, he filed a new suit in the District of Colorado, claiming that federal officials had failed to provide safe conditions and had disregarded his serious medical needs. Mr. Stine argued that he could not comply with the filing restrictions because prison officials had destroyed his legal papers. The district court rejected this argument and summarily dismissed the action based on a failure to comply with the filing restrictions. Mr. Stine appealed and sought relief from the obligation to prepay the filing fee. We excuse the prepayment obligation and affirm the dismissal.
I. We grant Mr. Stine leave to proceed without prepayment of the filing fee.
Like any appellant, Mr. Stine must pay the filing fee. See Fed. R. App. P. 3(e). We ordinarily require prepayment, but Mr. Stine claims that he does not have enough money to prepay the fee. The filing fee is $505, and he states under oath that he has only $7.42 in his prison account. As a result, he seeks leave to proceed without prepayment of the filing fee.
We generally relieve appellants of the prepayment obligation when they are unable to make an immediate payment. 28 U.S.C. § 1915(a). But when prisoners have had three or more dismissals in civil actions for failure to state a valid claim or frivolousness, they must prepay the filing fee unless they show that they are in imminent danger of serious physical injury. 28 U.S.C. § 1915(g).
Mr. Stine has had three or more dismissals for failure to state a valid claim or frivolousness; thus, he must show that he is in imminent danger of serious physical injury. To make this showing, he must present "specific, credible allegations of imminent danger of serious physical harm." Kinnell v. Graves, 265 F.3d 1125, 1127-28 (10th Cir. 2001).
Mr. Stine has made this showing. He alleges that
● his teeth are infected and abscessed and
● authorities are failing to provide dental care.
He adds that he has obtained prescriptions for Sensodyne and anesthetic oral gel, but states that he cannot use his prison account to purchase these items. We conclude that these allegations suffice for a showing of an imminent danger of serious physical injury. See McAlphin v. Toney, 281 F.3d 709, 710-11 (8th Cir. 2002) (stating that the standard under 28 U.S.C. § 1915(g) is satisfied by allegations of a spreading mouth infection and a need for two tooth extractions); see also Stine v. U.S. Fed. Bureau of Prisons, 465 F.App'x 790, 793-95 (10th Cir. 2012) (unpublished) (holding that Mr. Stine's allegations, involving an inability to buy medication for a chronic stomach condition, satisfied the standard under 28 U.S.C. § 1915(g)). As a result, we grant leave to proceed without prepayment of the filing fee.
II. The district court acted within its discretion in ordering dismissal.
The appeal involves the district court's order of dismissal based on Mr. Stine's noncompliance with filing restrictions. Under these restrictions, Mr. Stine could not sue until he was ...