### In the



# United States Court of Appeals

For the Seventh Circuit

____________________

No. 17

‐ 2427

M AURICE L. W ALLACE

, Plaintiff

‐ Appellant

,

v.

J OHN B ALDWIN

, et al.,

Defendants

‐ Appellees

.

____________________

Appeal from the United States District Court for the

Southern District of Illinois.

No. 17

‐ CV

‐ 0576

— David R. Herndon

, Judge

.

____________________

A RGUED A PRIL 25, 2018

— D ECIDED J ULY 9, 2018

____________________

Before M ANION

, H AMILTON

, and B ARRETT

, Circuit Judges

.

H AMILTON

, Circuit Judge

. Plaintiff Maurice Wallace was

convicted of murder and sentenced to life without parole in

2006. A few months after he entered prison, he assaulted a

guard. He has been in solitary confinement (euphemistically

called “disciplinary segregation”) ever since—for at least

eleven years. He is seriously mentally ill. He also poses chal

‐ lenges to both prison officials and federal courts.2 No. 17

‐ 2427

Wallace lodged with the district court a proposed com

‐ plaint against prison officials and the Illinois Department of

Corrections. He alleges that his prolonged isolation exacer

‐

bates his mental illness, increases his risk of suicide, and vio

‐

lates his Eighth and Fourteenth Amendment rights. He is un

‐

able to pay the civil filing fee in advance, so he also filed a

motion for leave to proceed in forma pauperis under 28 U.S.C.

§ 1915. The district court ruled that Wallace cannot proceed in

forma pauperis because he has received three “strikes” under

the Prison Litigation Reform Act for frivolous cases and did

not qualify for the statutory exception for a prisoner who is

“under imminent danger of serious physical injury.” See 28

U.S.C. § 1915(g).

Wallace appeals that denial. He was not allowed to pro

‐

ceed in the district court, and the named defendants have not

appeared in either the district court or on appeal. We re

‐

cruited counsel for Wallace, and they have represented him

ably. With better

‐ developed arguments and with the benefit

of Sanders v. Melvin

, 873 F.3d 957 (7th Cir. 2017), decided after

the district court’s decision in this case, we conclude that the

district court’s reasons for denying in forma pauperis status

were erroneous. Wallace has alleged sufficiently that he faces

imminent danger of serious physical injury. He also has not

yet received three “strikes” under the Prison Litigation Re

‐

form Act. We vacate the judgment and remand for further

proceedings.

The Prison Litigation Reform Act’s “three strikes” provi

‐

sion limiting prisoners’ civil lawsuits in federal courts is at the

center of this appeal:

In no event shall a prisoner bring a civil action or ap

‐ peal a judgment in a civil action or proceeding underNo. 17

‐ 2427 3

this section if the prisoner has, on 3 or more prior occa

‐

sions, while incarcerated or detained in any facility,

brought an action or appeal in a court of the United

States that was dismissed on the grounds that it is friv

‐

olous, malicious, or fails to state a claim upon which

relief may be granted, unless the prisoner is under im

‐

minent danger of serious physical injury.

28 U.S.C. § 1915(g).

We review de novo a district court’s interpretation of the

three

‐ strikes provision in § 1915(g). Ciarpaglini v. Saini

, 352

F.3d 328, 330 (7th Cir. 2003), citing Evans v. Illinois Dep’t of Cor

‐

rections

, 150 F.3d 810, 811 (7th Cir. 1998). On the imminent

‐ danger exception, factual issues are possible. If a district court

digs into them and makes findings, our appellate review

adapts accordingly. Our account treats as true all well

‐ pleaded allegations in the complaint and views them in the

light most favorable to plaintiff. See Arnett v. Webster

, 658 F.3d

742, 751 (7th Cir. 2011).

The core of Wallace’s complaint is that solitary confine

‐

ment has intensified his mental illness, including post

‐ trau

‐

matic stress disorder, causing nightmares, severe anxiety, and

most relevant here, suicidal thoughts. He describes his segre

‐ gation as “akin to being sealed inside a coffin.” He spends 23

to 24 hours a day alone in a cell that is “significantly smaller”

than 50 square feet. The cell is dark, noisy, infested with in

‐

sects, freezing in the winter, and hot in the summer. Because

of his segregation, he cannot attend educational or religious

classes, visit the law library used by the general population,

or earn income from a prison job.4 No. 17

‐ 2427

This extreme isolation for more than a decade has taken a

toll on Wallace’s mental health. He takes antidepressants for

post

‐ traumatic stress disorder. But despite this medication he

still experiences depression, anxiety, panic attacks, difficulty

sleeping, and auditory hallucinations.

Central to this appeal, Wallace alleges that prolonged seg

‐ regation has increased his risk of suicide. He has attempted

suicide at least five times, including three times during his

eleven years in segregation. His last attempt was in late 2016.

The details of that attempt are unclear. During a prior attempt

Wallace tied a sheet around his neck and “threatened to

jump.” Taking Wallace’s threats seriously, prison staff have

often placed him on special observation as a precaution

against self

‐ harm.

Over the years, Wallace alleges, he has submitted “several

hundred written requests” to be told when his segregation

will end. Prison staff either ignore those requests or summar

‐ ily deny them. His most recent request was denied without

explanation in January 2017.

A few months after the most recent denial, Wallace tried

to file this suit against the Department and prison officials un

‐

der 42 U.S.C. § 1983, alleging violations of his Eighth and

Fourteenth Amendment rights. He alleged in his pro se com

‐ plaint that the officials were deliberately indifferent to the ef

‐

fects of his prolonged isolation, including his increased risk of

suicide.

Wallace submitted with his complaint an application to

proceed in forma pauperis. He reported that he had incurred

three “strikes” under the PLRA for filing actions in federalNo. 17

‐ 2427 5

court that were dismissed as frivolous, malicious, or for fail

‐

ure to state a claim. But he argued that the district court

should allow him to proceed without prepayment of the full

filing fee because he faces “imminent danger of serious phys

‐

ical injury.” 28 U.S.C. § 1915(g).

The district court denied Wallace leave to proceed in

forma pauperis and ordered him to pay the full filing fee be

‐

fore the case could proceed. Wallace v. Baldwin

, No. 17

‐ cv

‐

0576

‐ DRH, 2017 WL 2865317 (S.D. Ill. July 5, 2017). The court’s

order listed three previous cases in which district judges had

assessed Wallace strikes. The court then ruled that Wallace’s

periodic suicidal ideation did not place him in “imminent

danger” because his complaint did not “allege that he is cur

‐ rently considering suicide,” and because “a prisoner cannot

create the imminent danger required by § 1915(g),” citing

Widmer v. Butler

, No. 14

‐ cv

‐ 874

‐ NJR, 2014 WL 3932519 (S.D.

Ill. Aug. 12, 2014), and other district court decisions. Wallace,

2017 WL 2865317, at *2. Wallace did not pay the filing fee but

instead filed this appeal, also seeking to proceed in forma

pauperis.

We first address the issue presented to the district court,

which is whether his allegations satisfy the imminent

‐ danger

exception to § 1915(g). To be clear, we respectfully disagree

with the district court’s general rule that a prisoner cannot

create the imminent danger needed to satisfy the exception.

We recognize the common

‐ sense appeal of that general rule,

at least to the extent it is based on truly voluntary actions by

the prisoner. In the case, however, of someone suffering from

mental illness that inclines him toward self

‐ harm—a condi

‐

tion that is unfortunately common in American prisons—that6 No. 17

‐ 2427

general rule sweeps too broadly. It does not account for gen

‐

uine dangers beyond the conscious control of these prisoners.

Wallace cites scholarly studies finding a link between pro

‐ longed solitary confinement and an increased risk of self

‐

harm. See, e.g., Fatos Kaba, et al., Solitary Confinement and Risk

of Self

‐ Harm Among Jail Inmates

, 104 Am. J. of Pub. Health 442

(2014); Stuart Grassian, Psychiatric Effects of Solitary Confine

‐

ment

, 22 Wash U. J. L. & Pol’y 325 (2006). Two professors of

psychiatric medicine tell us in an amicus brief that these stud

‐

ies align with the “scientific consensus

... that prisoners held

in solitary confinement experience serious, often debilitat

‐ ing—even irreparable—mental and physical harms,” includ

‐ ing an increased risk of suicide. See also Davis v. Ayala

, 135 S.

Ct. 2187, 2208–10 (2015) (Kennedy, J., concurring) (noting

need for courts to pay closer attention to research on harmful

mental

‐ health effects of solitary confinement); Glossip v. Gross

,

135 S. Ct. 2726, 2765–66 (2015) (Breyer, J., dissenting) (review

‐ ing research on harmful mental

‐ health effects of solitary con

‐

finement, noting that the United Nations Special Rapporteur

on Torture has called for a global ban on solitary confinement

for longer than 15 days, and noting that many defendants

waiting for death penalty in solitary confinement “volunteer

to be executed, abandoning further appeals”).

With the help of his appellate counsel and the amici, Wal

‐

lace argues broadly that prolonged solitary confinement

“makes self

‐ harm imminent” for all prisoners, regardless of

their individual circumstances. They argue, in effect, that any

challenge to solitary confinement based on a claimed risk of

self

‐ harm could satisfy the imminent

‐ danger exception of

§ 1915(g). We can decide this case without going so far. Lim

‐No. 17

‐ 2427 7

iting our decision to the facts before us, we conclude that Wal

‐

lace made a sufficient showing that he faced imminent dan

‐

ger.

Wallace’s situation is indistinguishable from that of the

mentally

‐ ill prisoner in Sanders v. Melvin

, 873 F.3d 957 (7th

Cir. 2017). Sanders had spent eight years in solitary confine

‐

ment and had a history of self

‐ harm when he filed suit. Id. at

959–60. He alleged that his mental illness and prolonged seg

‐ regation predisposed him to self

‐ harm. We concluded that

Sanders’s allegations satisfied the imminent

‐ danger excep

‐

tion to the three

‐ strikes rule. Id. at 960.

Similarly, Wallace has spent eleven years in solitary con

‐

finement, suffers from serious mental illness, and he has a his

‐

tory of attempting to harm himself. He raises a genuine con

‐

cern that the negative psychological effects of his segregation

will drive him to self

‐ harm. So Wallace has plausibly alleged

that his continued segregation places him in imminent danger

of serious bodily injury. See id. ; see also In re Medley

, 134 U.S.

160, 168 (1890); Davis

, 135 S. Ct. at 2210 (Kennedy, J., concur

‐ ring).

For the sake of completeness, we also elect to address a

second issue. Wallace himself did not raise it, having taken at

their word federal judges’ assessments of strikes. His appel

‐

late counsel have recognized and explained the problem.

Wallace would be entitled to proceed in forma pauperis even

if he were not in imminent danger. Upon closer examination,

it is clear that only two of his purported “strikes” were

properly assessed. The third strike was a case in which a judge

assessed Wallace a strike after denying his motion to inter

‐

vene in another prisoner’s lawsuit. The assessment of that

strike was a legal error.8 No. 17

‐ 2427

“[A] later district court may not defer to an earlier district

court’s contemporaneous decision to label a dismissal as a

strike.” Fourstar v. Garden City Grp., Inc

., 875 F.3d 1147, 1153

(D.C. Cir. 2017). We agree with Wallace that moving to inter

‐

vene under Federal Rule of Civil Procedure 24 does not qual

‐ ify for a strike. Section 1915(g) is phrased to apply only to

bringing a civil action or appealing a civil judgment: “In no

event shall a prisoner bring a civil action or appeal a judgment

in a civil action or proceeding under this section” if the pris

‐

oner has accumulated three strikes, says the statute. Filing a

motion to intervene does not amount to bringing a civil ac

‐

tion. Also, a district judge may deny intervention without

finding that the complaint in intervention is “frivolous, mali

‐

cious, or fails to state a claim.” See § 1915(g); Fed. R. Civ. P.

24(b). We see no basis to stretch the text of § 1915(g) to address

the hypothetical prisoner who seeks to exploit intervention as

a means of avoiding the three

‐ strikes rule. In such cases,

which should be rare, the judge would still have many addi

‐

tional tools to deal with misuse of litigation procedures.

Accordingly, we VACATE the district court’s order deny

‐ ing Wallace’s motion for leave to proceed in forma pauperis

and REMAND this action for further proceedings consistent

with this opinion.