UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

________________ _________________ RUSSELL M. BOLES, Plaintiff - Appellant,

v. COLORADO DEPA RTMENT 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* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judica ta, and collateral estoppel. It may be cited, however, for its persuasive value consiste nt with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.

** After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not ma terially 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 Court2 ________________ _________________ Plaintiff Russell Boles, a state prisoner proceeding pro se, filed a complaint in the district court against the Colorado Department of Corr ections 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 th at Plaintiff had accrued three “strikes,” meaning that, whil e incarcerated, he had prev iously 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 bringi ng 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 re striction, namely that he was “under imminent danger of serious physical injury.” 28 U.S.C. § 1915(g). After reviewing Plaintiff’s submissi ons, however, the district court determined that he had offered only “vague and conclusory alle gations 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 50–5 1.) Accordingly, the cour t denied the IFP motion and ordered Plaintiff to pay the fi ling 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 Plai ntiff had put forward only “vague and3 timely pay the fee, the cour t dismissed the action without prejudice pursuant to Fed. R. Civ. P. 41(b) and ente red judgment for Defendants. 2 Plaintiff timely appealed. On appeal, Plaintiff filed a motion to proceed IFP. Li ke the magistrate judge,

we noted that Plaintiff has accrued three strikes and orde red him to show cause why the appeal should not be dismissed for failu re to prepay the filing fee or why the filing restriction does not apply. In his response to the s how-cause order, as in the district court, Plaintif f did not contest the three strikes but instead asserted that he is under imminent danger of se rious physical injury. We de ferred ruling on Plaintiff’s

IFP motion and allowed him to file a brief on the merits. As a threshold issue, befo re addressing the merits, we must determine whether § 1915(g) prevents us from cons idering 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 c ourts may consider th eir 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 “s pecific and credible[,] factua l allegations demonstrating imminent danger of serious physi cal injury.” (R. at 64.) 2 Following the denial of his motion fo r reconsideration, Plaintiff filed an amended complaint, which the court underst ood “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 phy sical 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 seri ous physical injury.’” Id. at 1179 (internal citation omitted) (quoting § 1915(g)). “ [A] prisoner qualifies for the excep tion 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). “Allega tions 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 sa tisfy the imminentdanger exception, “‘he should make a sp ecific 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 (interna l quotation marks omitted) (quoting White , 157 F.3d at 1232). Further, “an inmate seeking the immi nent danger exception must show ‘a

nexus between the imminent da nger [he] alleges . . . and th e 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) (conc luding that assertion of im minent danger at one prison is insufficient when pr isoner’s claims relate only to act ions by officials in a different5 prison). Determining if a su fficient nexus exists involve s considering “whether the imminent danger of serious physical injury” alleged is “fairly traceable to unlawful conduct asserted in the comp laint” or appeal and “whe ther 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 sufficien tly allege imminent danger in a trial

court at the time his co mplaint is filed and in an appella te 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 alle gations 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 alwa ys 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 hi s 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 irri table 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-f ood diet. Despite Plaintif f’s complaints, Defendants Kristy Holjenin and Charlene Crocket, who are responsible for pr isoners’ diets, have refused to provide him a fres h-food diet and have instead provided him food that he6 cannot digest and that causes him “excru ciating pain,” prompting him to forego meals altogether. 3 (Answer to Order to Show Caus e at 2.) Defendant Doctor Bryan Reichert has refused to pres cribe a fresh-food diet, or to otherwise treat Plaintiff’s IBS other than by prescribi ng fiber supplementation, ba sed on medical tests that

Plaintiff asserts are irreleva nt. Aside from severe pain, his untreated IBS, along with a lack of digestible food, has also result ed 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 da nger of serious physical inju ry. Plaintiff has specified which of the Defendants (Holjenin, Croc ket, and Reichert) denied him what treatment (a fresh-food diet ) for what ailment (IBS) on what occasion (after he complained to Holjenin and Crocket a nd sought treatment from Reichert, and continuing into the present), and he has id entified the general na ture of the alleged imminent physical injuries (severe pain , aggravated bone de generation, and leg swelling resulting from untreated IB S 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 seri ous 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 Plaint iff’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 ha s 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 ‘a llegations that Defendants ha ve 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, 8 55 (10th Cir. 2017)); see Fuller v. Myers , 123 F. App’x at 367 (“[D]eli berate indifference to a prisoner’s serious medical conditions has been found to satisfy th e [imminent-danger] requirement.” (citing Hunt v. Uphoff , 199 F.3d 1220, 1222 (10th Cir. 1999))). Indeed, we have regularly held that specific allegations, roughly simi lar 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” “spi nal 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 substantia l and chronic back pain,”

“ cannot sit or stand for extended periods wit hout being in terrible pain,” “experiences a constant grinding in his neck and popp ing in his back,” and has numbness in his limbs “whenever he tries to sleep on his si de” were sufficient wh en prisoner also alleged officials diagnosed him with degenerative dis ease but provided inadequate treatment and refused to re fer 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 bl ood, pain when he eats or talks, reduced ability to swallow without pa in, and permanent damage to his esophagus lining” unless given a drug which officials refuse d 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” cause d by officials’ refusal to clean the prison’s ventilati on system were sufficient ).8 Further, Plaintiff has shown a suffici ent 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 Defendant s are violating his Eighth Amendment rights by being deliberately i ndifferent to his serious medical needs. 5 Specifically, Plaintiff alle ges 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] offici als to provide the current standard accommodations they are not currently providi ng.” (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 un lawful conduct he asserts on appeal (deliberate indiffere nce to his IBS condition), a nd a decision in his favor (remand to the district court where his clai m, if proved, might be redressed) could redress that injury. See Lomax , 754 F. App’x at 759.

5 Plaintiff’s complaint contai ns several claims that ar e either unrelated, or only tangentially related, to his IB S 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 th ree-strikes rule and otherwise qualifies for IFP status, the distri ct 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 alle ge 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 consid ered this issue have held likewise, with citations to Andrews and cases from thr ee other circuits).9 Because Plaintiff has satisfied the imminent-danger re quirement, he may proceed IFP in this appeal. We now turn to the merits.

Plaintiff asserts the district court erred in determini ng he had failed to satisfy the imminent-danger requirement, which ul timately resulted in dismissal. The allegations of imminent dange r Plaintiff raised in the district court are the same allegation he raises in this appeal. Thos e 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 applie s remains unsettled. At least two of our unpublished decisions have suggested the abuse-of-discr etion 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 (10t h Cir. 1998). However, at least three unpublished decisions have vacated a denial of IFP stat us after conducting what seems to be a de novo assessment of the immi nent-danger allegations and apparently concluding that, if the allegations are sufficient for purpose s of appellate IFP st atus, they are also sufficient for purposes of IFP stat us 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. Decisi ons from other ci rcuits are not helpful. A few circuits, like our circuit, seem not to apply a co nsistent standard. Compare, e.g. , Jones v. U.S. Nat’l Fe d. 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 Ci r. 2017) (abuse of discretion), and Barber v. Krepp , 680 F. App’x 819, 821 (11th Ci r. 2017) (abuse of discretion), and Bradford v. Ogbuehi , 683 F. App’x 634, 635 (9th Cir. 2017) (abuse of discretion). A majority of the remaini ng circuits appear to a pply 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-discr etion standard). However, their decisions do not offer much reasoning fo r the choice. We de cline 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 proc eed 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