UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_________________________________ 

RUSSELL M. BOLES, 

 Plaintiff - Appellant, 

v. 

COLORADO DEPARTMENT OF 

CORRECTIONS; CHARLENE 

CROCKET; KRISTY HOLJENIN; 

MAJOR ZWIRN; RABBI YISROEL 

ROSSKAMM; CAPTAIN KENNETH 

PHIPPS; CAPTAIN CYRUS 

CLARKSON; LT. IAN BARNES; LT. 

TAYLOR; LT. MATTHEW POWELL; 

LT. DERRICK ROBERTS; DOCTOR 

BRYAN REICHERT; GARY WARD; 

REIDER MAY; NICOLE WILSON; DOC 

ACCOUNTING PERSONNEL; GTL; 

CAPTIAIN J. DORCEY; LT. CUSTER; 

MS. FULLER; LIEUTENANT SHAWNA 

NYGAARD, 

 Defendants - Appellees. 

No. 19-1314 

(D.C. No. 1:19-CV-01158-LTB) 

(D. Colo.) 

_________________________________ 

ORDER AND JUDGMENT*

_________________________________ 

Before MATHESON, McKAY, and BACHARACH, Circuit Judges.**

 * This order and judgment is not binding precedent, except under the doctrines 

of law of the case, res judicata, and collateral estoppel. It may be cited, however, for 

its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. 

** After examining the briefs and appellate record, this panel has determined 

unanimously that oral argument would not materially assist in the determination of 

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore 

ordered submitted without oral argument. 

FILED 

United States Court of Appeals 

Tenth Circuit 

December 9, 2019

Elisabeth A. Shumaker 

Clerk of Court
2 

_________________________________ 

Plaintiff Russell Boles, a state prisoner proceeding pro se, filed a complaint in 

the district court against the Colorado Department of Corrections and numerous 

prison officials, asserting violations of his rights under the Constitution and federal 

law. On the same day, Plaintiff filed a motion to proceed in forma pauperis pursuant 

to 28 U.S.C. § 1915. The magistrate judge noted that Plaintiff had accrued three 

“strikes,” meaning that, while incarcerated, he had previously brought three civil 

actions or appeals in federal courts that were dismissed as frivolous or for failure to 

state a claim. Accordingly, the magistrate judge ordered Plaintiff to show cause why 

his IFP motion should not be denied under § 1915(g), which prohibits prisoners who 

have three or more strikes from proceeding IFP or bringing further actions without 

pre-paying the filing fee. 

In response, Plaintiff did not contest that he had accrued three strikes but, 

instead, asserted that he fit under an exception to the filing restriction, namely that he 

was “under imminent danger of serious physical injury.” 28 U.S.C. § 1915(g). After 

reviewing Plaintiff’s submissions, however, the district court determined that he had 

offered only “vague and conclusory allegations in support of” his assertion of 

imminent danger and that he had “fail[ed] to link the alleged imminent danger to 

[his] claims.” (R. at 50–51.) Accordingly, the court denied the IFP motion and 

ordered Plaintiff to pay the filing fee within a certain time.1

 When Plaintiff failed to 

 1

 The court also denied a subsequent motion for reconsideration because the 

court “remain[ed] convinced” that Plaintiff had put forward only “vague and 
3 

timely pay the fee, the court dismissed the action without prejudice pursuant to Fed. 

R. Civ. P. 41(b) and entered judgment for Defendants.2

 Plaintiff timely appealed. 

On appeal, Plaintiff filed a motion to proceed IFP. Like the magistrate judge, 

we noted that Plaintiff has accrued three strikes and ordered him to show cause why 

the appeal should not be dismissed for failure to prepay the filing fee or why the 

filing restriction does not apply. In his response to the show-cause order, as in the 

district court, Plaintiff did not contest the three strikes but instead asserted that he is 

under imminent danger of serious physical injury. We deferred ruling on Plaintiff’s 

IFP motion and allowed him to file a brief on the merits. 

As a threshold issue, before addressing the merits, we must determine whether 

§ 1915(g) prevents us from considering Plaintiff’s appeal. See Dopp v. Larimer, 731 

F. App’x 748, 750–52 (10th Cir. 2018). “The ‘three strikes’ provision of the [IFP] 

statute applicable to indigent prisoners requires so-called ‘frequent filer’ prisoners to 

prepay the entire filing fee before federal courts may consider their civil actions and 

appeals.” Hafed v. Fed. Bureau of Prisons, 635 F.3d 1172, 1176 (10th Cir. 2011) 

(internal quotation marks and brackets omitted), abrogated on other grounds by 

 

conclusory,” rather than “specific and credible[,] factual allegations demonstrating 

imminent danger of serious physical injury.” (R. at 64.) 

2

 Following the denial of his motion for reconsideration, Plaintiff filed an 

amended complaint, which the court understood “to be another attempt to establish 

imminent danger of serious physical injury.” (R. at 92.) The court nonetheless 

“remain[ed] convinced” that the “vague and conclusory allegations” in the amended 

complaint were “not specific and credible factual allegations demonstrating imminent 

danger of serious physical injury.” (Id.) The court therefore dismissed the amended 

complaint. 
4 

Coleman v. Tollefson, 135 S. Ct. 1759 (2015). “There is only one exception to the 

prepayment requirement in § 1915(g), and it applies to a prisoner who ‘is under 

imminent danger of serious physical injury.’” Id. at 1179 (internal citation omitted) 

(quoting § 1915(g)). “[A] prisoner qualifies for the exception if he makes ‘specific, 

credible allegations of imminent danger of serious physical harm.’” Dopp, 731 F. 

App’x at 751 (quoting Hafed, 635 F.3d at 1179). “Allegations in the complaint [or 

appeal] of ‘imminent danger’ must not be ‘vague and utterly conclusory.’” Stine v. 

U.S. Fed. Bureau of Prisons, 465 F. App’x 790, 792 (10th Cir. 2012) (quoting White 

v. Colorado, 157 F.3d 1226, 1231 (10th Cir. 1998)). Thus, if a prisoner relies on 

allegations of deliberate indifference to a medical need to satisfy the imminentdanger exception, “‘he should make a specific reference as to which of the 

defendants may have denied him what medication or treatment for what ailment on 

what occasion,’” id. at 793 (internal quotation marks omitted) (quoting Hafed, 635 

F.3d at 1180), and “identify at least ‘the general nature of the serious physical injury 

he asserts is imminent,’” Hafed, 635 F.3d at 1180 (internal quotation marks omitted) 

(quoting White, 157 F.3d at 1232). 

Further, “an inmate seeking the imminent danger exception must show ‘a 

nexus between the imminent danger [he] alleges . . . and the legal claims asserted.’” 

Lomax v. Ortiz-Marquez, 754 F. App’x 756, 759 (10th Cir. 2018) (quoting Pettus v. 

Morgenthau, 554 F.3d 293, 297 (2d Cir. 2009)); see also Day v. Maynard, 200 F.3d 

665, 667 (10th Cir. 1999) (concluding that assertion of imminent danger at one prison 

is insufficient when prisoner’s claims relate only to actions by officials in a different 
5 

prison). Determining if a sufficient nexus exists involves considering “whether the 

imminent danger of serious physical injury” alleged is “fairly traceable to unlawful 

conduct asserted in the complaint” or appeal and “whether a favorable judicial 

outcome would redress that injury.” Lomax, 754 F. App’x at 759 (internal quotation 

marks and emphases omitted). 

A three-strikes prisoner must sufficiently allege imminent danger in a trial 

court at the time his complaint is filed and in an appellate court at the time his appeal 

is filed. See Dopp, 731 F. App’x at 750–51; Hafed, 635 F.3d at 1179. Although a 

prisoner should advance his allegations of imminent danger in his IFP motion, courts 

may also look to other filings as well, bearing in mind that prisoners seeking IFP 

status are almost always proceeding pro se. See Hafed, 635 F.3d at 1180. In 

determining if a prisoner’s allegations are sufficient to meet the imminent-danger 

exception, we construe his filings liberally and accept his well-pled allegations as 

true, see Davis v. Rice, 299 F. App’x 834, 835 (10th Cir. 2008), and we require only 

that his allegations facially satisfy the threshold showing that the imminent-danger 

exception applies, see Fuller v. Myers, 123 F. App’x 365, 367–68 (10th Cir. 2005). 

Liberally construed, Plaintiff’s appellate filings allege the following. Plaintiff 

has a lengthy history of irritable bowel syndrome, which has been diagnosed and 

documented in the Department of Corrections’s own records. The standard treatment 

for his condition is a fresh-food diet. Despite Plaintiff’s complaints, Defendants 

Kristy Holjenin and Charlene Crocket, who are responsible for prisoners’ diets, have 

refused to provide him a fresh-food diet and have instead provided him food that he 
6 

cannot digest and that causes him “excruciating pain,” prompting him to forego 

meals altogether.3

 (Answer to Order to Show Cause at 2.) Defendant Doctor Bryan 

Reichert has refused to prescribe a fresh-food diet, or to otherwise treat Plaintiff’s 

IBS other than by prescribing fiber supplementation, based on medical tests that 

Plaintiff asserts are irrelevant. Aside from severe pain, his untreated IBS, along with 

a lack of digestible food, has also resulted in aggravation of a degenerative bone 

condition and swelling in his legs. 

These allegations facially satisfy the threshold requirement to show that 

Plaintiff is under imminent danger of serious physical injury. Plaintiff has specified 

which of the Defendants (Holjenin, Crocket, and Reichert) denied him what 

treatment (a fresh-food diet) for what ailment (IBS) on what occasion (after he 

complained to Holjenin and Crocket and sought treatment from Reichert, and 

continuing into the present), and he has identified the general nature of the alleged 

imminent physical injuries (severe pain, aggravated bone degeneration, and leg 

swelling resulting from untreated IBS and an undigestible diet). See Stine, 465 F. 

App’x at 793; Hafed, 635 F.3d at 1180, White, 157 F.3d at 1232. These allegations 

are not vague or utterly conclusory but are instead specific, credible allegations of 

imminent danger of serious physical injury. See Dopp, 731 F. App’x at 751; Stine,

465 F. App’x at 792; White, 157 F.3d at 1231. “[W]e have previously held that a 

 3

 Although portions of Plaintiff’s brief might be read to suggest that prison 

officials provide him no food whatsoever, other portions of the brief and his other 

filings clarify that Plaintiff has opted to not eat the food he is provided at least in part 

to avoid the pain resulting from a non-fresh-food diet. 
7 

plaintiff’s particularized ‘allegations that Defendants have displayed a deliberate 

indifference toward his serious medical needs and denied him adequate medical 

treatment are sufficient to facially establish the . . . imminent and serious danger 

requirement for proceeding IFP.’” Dopp, 731 F. App’x at 751 (quoting Davis. v. 

GEO Grp. Corr., Inc., 696 F. App’x 851, 855 (10th Cir. 2017)); see Fuller v. Myers, 

123 F. App’x at 367 (“[D]eliberate indifference to a prisoner’s serious medical 

conditions has been found to satisfy the [imminent-danger] requirement.” (citing 

Hunt v. Uphoff, 199 F.3d 1220, 1222 (10th Cir. 1999))). Indeed, we have regularly 

held that specific allegations, roughly similar to Plaintiff’s, of prison officials 

refusing to treat a prisoner’s chronic condition that causes severe pain or aggravates 

debilitating symptoms are enough to facially satisfy the imminent-danger exception.4

 4 See, e.g., Dopp, 731 F. App’x at 751–52 (holding allegations of 

“inadequately treated” and “worsening” “spinal condition . . . causing . . . unbearable 

pain” were sufficient); Davis v. GEO Grp., 696 F. App’x at 854–55 (holding 

allegations that prisoner “has long suffered from substantial and chronic back pain,” 

“cannot sit or stand for extended periods without being in terrible pain,” “experiences 

a constant grinding in his neck and popping in his back,” and has numbness in his 

limbs “whenever he tries to sleep on his side” were sufficient when prisoner also 

alleged officials diagnosed him with degenerative disease but provided inadequate 

treatment and refused to refer him to a specialist who might offer adequate 

treatment); id. at 855 (collecting cases); Stine, 465 F. App’x at 794–96 (holding 

allegations that prisoner suffers “reflux of blood, pain when he eats or talks, reduced 

ability to swallow without pain, and permanent damage to his esophagus lining” 

unless given a drug which officials refused to provide were sufficient (internal 

citations, quotation marks, and brackets omitted)); id. at 794 (collecting cases); cf.

Fuller v. Myers, 123 F. App’x at 366–67 (holding allegations of “breathing 

difficulties and other respiratory problems,” “[s]evere headaches, watery eyes, dust 

and lint in [the prisoner]’s mucous, [and] nose bleeds” caused by officials’ refusal to 

clean the prison’s ventilation system were sufficient). 
8 

Further, Plaintiff has shown a sufficient nexus between the imminent danger 

he alleges and the claims at issue on appeal. Plaintiff asserts that the district court 

erred by dismissing his claim, among others, that Defendants are violating his Eighth 

Amendment rights by being deliberately indifferent to his serious medical needs.5

 

Specifically, Plaintiff alleges Defendants refuse to provide adequate medical 

treatment for his IBS and related conditions by failing to prescribe or offer him a 

fresh-food diet. He asks that his “case [be] sent back to District Court” “[s]o the 

court may compel the [prison] officials to provide the current standard 

accommodations they are not currently providing.” (Appellant’s Br. at 4, 12.) Thus, 

the imminent danger of serious physical injury Plaintiff alleges (harm resulting from 

inadequate treatment of IBS) is fairly traceable to the unlawful conduct he asserts on 

appeal (deliberate indifference to his IBS condition), and a decision in his favor 

(remand to the district court where his claim, if proved, might be redressed) could 

redress that injury. See Lomax, 754 F. App’x at 759. 

 5

 Plaintiff’s complaint contains several claims that are either unrelated, or only 

tangentially related, to his IBS condition. The claim that is related to his IBS 

condition, however, is sufficient, as the imminent-danger exception is not evaluated 

on a claim-by-claim basis. See Andrews v. Cervantes, 493 F.3d 1047, 1053–54 (9th 

Cir. 2007) (“[O]nce a prisoner satisfies the exception to the three-strikes rule and 

otherwise qualifies for IFP status, the district court must docket the entire complaint 

and resolve all of its claims . . . [even if] a number of the claims in [the] suit 

unquestionably d[o] not allege an imminent danger of serious physical injury.”);

Chavis v. Chappius, 618 F.3d 162, 171–72 & n.7 (2d Cir. 2010) (reaching same 

conclusion and noting that all circuit courts to have considered this issue have held 

likewise, with citations to Andrews and cases from three other circuits).
9 

Because Plaintiff has satisfied the imminent-danger requirement, he may 

proceed IFP in this appeal. We now turn to the merits. 

Plaintiff asserts the district court erred in determining he had failed to satisfy 

the imminent-danger requirement, which ultimately resulted in dismissal. The 

allegations of imminent danger Plaintiff raised in the district court are the same 

allegation he raises in this appeal. Those allegations should have been as sufficient 

in the district court as they are here.6

 

 6

 The standard of review applicable to a district court’s determination as to 

whether the imminent-danger exception applies remains unsettled. At least two of 

our unpublished decisions have suggested the abuse-of-discretion standard applies. 

See Davis v. Rice, 299 F. App’x at 835; Bakalov v. McCotter, 141 F.3d 1184 (table), 

1998 WL 165119, at *1 (10th Cir. 1998). However, at least three unpublished 

decisions have vacated a denial of IFP status after conducting what seems to be a de 

novo assessment of the imminent-danger allegations and apparently concluding that, 

if the allegations are sufficient for purposes of appellate IFP status, they are also 

sufficient for purposes of IFP status in the district court. See Davis v. GEO Grp., 696 

F. App’x at 853–56; Fuller v. Wilcox, 288 F. App’x 509, 510–11 (10th Cir. 2008); 

Fuller v. Myers, 123 F. App’x at 366–68. Decisions from other circuits are not 

helpful. A few circuits, like our circuit, seem not to apply a consistent standard. 

Compare, e.g., Jones v. U.S. Nat’l Fed. Debt Contractors, No. 18-12570-D, 2019 WL 

2567721, at *1 (11th Cir. Feb. 13, 2019) (de novo), and Fourstar v. Eckroth, 512 F. 

App’x 127, 127 (3d Cir. 2013) (de novo), and Andrews, 493 F.3d at 1052 (de novo), 

with Brown v. Wolf, 705 F. App’x 63, 66–67 (3d Cir. 2017) (abuse of discretion), and

Barber v. Krepp, 680 F. App’x 819, 821 (11th Cir. 2017) (abuse of discretion), and

Bradford v. Ogbuehi, 683 F. App’x 634, 635 (9th Cir. 2017) (abuse of discretion). A 

majority of the remaining circuits appear to apply a de novo standard. See Shepherd 

v. Annucci, 921 F.3d 89, 93 (2d Cir. 2019); Wallace v. Baldwin, 895 F.3d 481, 483 

(7th Cir. 2018); Coleman v. Crawford, 571 F. App’x 502, 502 (8th Cir. 2014); Chase 

v. O’Malley, 466 F. App’x 185, 186 (4th Cir. 2012); Foster v. Unidentified Party, 34 

F. App’x 963, 963 (5th Cir. 2002). But see Vandiver v. Prison Health Servs., Inc., 

727 F.3d 580, 585 (6th Cir. 2013) (applying abuse-of-discretion standard). However, 

their decisions do not offer much reasoning for the choice. We decline to determine 

here the appropriate standard of review because, under either standard, we would 

reach the same decision. 
10 

Accordingly, we GRANT Plaintiff’s motion to proceed IFP in this appeal, 

VACATE the district court’s order dismissing the action, VACATE the district 

court’s order denying Plaintiff’s motion to proceed IFP, and REMAND the case to 

the district court for further proceedings. In so doing, we express no opinion as to 

the ultimate merits of this case. 

Entered for the Court 

Monroe G. McKay 

Circuit Judge