United States Court of Appeals

For the Eighth Circuit

___________________________

No. 22-3050

___________________________

Steven L. Pinder

lllllllllllllllllllllPlaintiff - Appellant

v.

WellPath, LLC, also known as Correct Care Solutions LLC, et al.

lllllllllllllllllllllDefendants - Appellees

 ____________

Appeal from United States District Court 

for the Eastern District of Arkansas - Delta

 ____________

 Submitted: January 11, 2024

Filed: August 9, 2024

____________

Before LOKEN, KELLY, and STRAS, Circuit Judges. 

____________

LOKEN, Circuit Judge.

Arkansas inmate Steven Pinder filed this 42 U.S.C. § 1983 action in October

2020 against correctional defendants. The pro se complaint sought declaratory and

injunctive relief and substantial damages, alleging that Defendants’ deliberate

indifference to Pinder’s serious medical needs stemming from several continuing

medical issues violated his Eighth Amendment rights. He appeals the district court’s

final order granting summary judgment to two Defendants on Pinder’s claim of
deliberative indifference to the orthopedic condition of his right shoulder, and the

court’s earlier interlocutory dismissal of his other claims for failure to establish IFP

status. We granted his pro se motion for leave to proceed IFP on appeal and

appointed appellate counsel. Defendants filed an opposed motion to revoke Pinder’s

appellate IFP status, tendering new medical evidence that he was not in imminent

danger when the appeal was filed. We took the motion under advisement. For the

reasons that follow, we remand the motion to revoke IFP status on appeal to the

district court, and we also remand the issue whether the interlocutory dismissals were

proper for further consideration in light of a recent Eighth Circuit opinion addressing

that issue. We need not rule on the grant of summary judgment at this time. 

I. Background

Pinder is an inmate in the long-term custody of the Arkansas Department of

Corrections (“ADOC”). Proceeding pro se, he filed this lawsuit against numerous

Defendants including Wellpath, LLC, the medical care contractor for ADOC;

numerous Wellpath employees; Diamond Drugs, Inc., the provider of prescription

drugs for ADOC inmates; and Rory Griffin, Deputy Director of ADOC. Pinder

alleged that Defendants acted with deliberate indifference to his serious medical

needs in violation of the Eighth Amendment by failing to provide adequate care for

numerous ailments and conditions -- severe glaucoma, peptic ulcers, acid reflux

condition, diabetes, the orthopedic condition of his right shoulder, and the denial of

timely prescribed and over-the-counter medications.

The district court threatened dismissal for failing to pay the court’s filing fees. 

Pinder moved for leave to proceed in forma pauperis (“IFP”) under 28 U.S.C.

§ 1915(a)(1) and (b)(1-3), which authorize a district court to allow an indigent

prisoner to bring a civil action, or appeal a judgment in a civil action, without

prepayment of filing fees, upon payment of an initial partial filing fee, with the

remainder of the filing fee to be paid in monthly installments. The district court noted

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that Pinder appeared to be an indigent prisoner ineligible for IFP status under the

“three strikes” provision in § 1915(g), added to § 1915 in the Prison Litigation

Reform Act (“PLRA”):

(g) 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 prisoner

has, on 3 or more prior occasions, 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 frivolous, malicious, or fails to

state a claim upon which relief may be granted, unless the prisoner is

under imminent danger of serious physical injury.

Admitting he has “three strikes” because prior actions were dismissed as frivolous or

for failure to state a claim, Pinder filed a detailed Declaration of Imminent Danger

asserting that the alleged denial and delay of treatments for the above-mentioned

conditions placed him at risk of, inter alia, shoulder dislocation, further loss of vision

up to potential blindness, and perforation of his stomach lining. He argued that he

“is under imminent danger of serious physical injury” and therefore eligible for IFP

status under 28 U.S.C. § 1915(g). 

It is well-established that, for a three-strike plaintiff to be granted IFP status

based on the imminent danger exception in § 1915(g), “the requisite imminent danger

. . . must exist at the time the complaint or the appeal is filed, not when the alleged

wrongdoing occurred.” Martin v. Shelton, 319 F.3d 1048, 1050 (8th Cir. 2003). The

magistrate judge assigned to Pinder’s case, screening the case under § 1915A(a),

initially recommended denying leave to proceed IFP because Pinder’s allegations did

not demonstrate imminent danger of serious physical injury when he filed the

complaint. Responding to Pinder’s objection, the magistrate judge recommended (I)

granting leave to proceed IFP on claims related to Pinder’s shoulder, ulcers, and

glaucoma against some Defendants because Pinder satisfied the imminent danger

exception for those claims, and (ii) dismissing his remaining claims for which he

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failed to satisfy the imminent danger exception. The district court adopted the

magistrate judge’s recommendations, and the case proceeded on the shoulder, ulcers,

and glaucoma claims against Defendants Wellpath; Wellpath employees Dr. Gary

Kerstein, Arkansas Practice Nurse (“APN”) Tracy Bennett, and Gregory Rechcigl;

Diamond Drugs; and Deputy Director Griffin. 

Some months later, the remaining Defendants moved for summary judgment

arguing, inter alia, that IFP status should be revoked for the remaining claims

because Pinder’s deposition testimony made clear that he was not in imminent danger

for those claims when he filed his complaint. After briefing, the magistrate judge

recommended that IFP status be revoked for Pinder’s ulcer-related and glaucomarelated claims and the claim that he was denied ibuprofen for the orthopedic problems

with his shoulder. The magistrate judge recommended that IFP status be maintained

for his claim that Dr. Kerstein and APN Bennett improperly refused to renew Pinder’s

“double-cuff script” -- which prescribes that, whenever restrained, Pinder be placed

in two sets of handcuffs with his hands behind his back to prevent further shoulder

injury.1

 Pinder objected. The district court again adopted the magistrate judge’s

recommendations. We dismissed Pinder’s appeal from that order as premature. 

Months later, Dr. Kerstein and APN Bennett moved for summary judgment on

the remaining double-cuff script claim. Reviewing the parties’ briefs and the

evidence in the summary judgment record, the magistrate judge recommended that

summary judgment be granted because there was no evidence permitting a reasonable

jury to find that Bennett and Kerstein acted with deliberate indifference to Pinder’s

serious medical needs in declining to renew his double-cuff script in 2020. The

district court adopted the magistrate judge’s recommendation to grant summary

judgment. Final judgment was entered on September 21, 2022. 

1Pinder alleged that his shoulder had dislocated at least three times because

Kerstein and Bennett declined to renew his double-cuff script. 

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Pinder filed a timely notice of appeal, a motion to proceed IFP on appeal, and

a “Declaration of Imminent Danger.” A panel of this Court granted Pinder leave to

proceed IFP on appeal, appointed appellate counsel, and requested briefing on the

issue “whether the district court committed reversible error by applying a

claim-by-claim approach to appellant’s request to proceed in forma pauperis under

28 U.S.C. 1915(g).” Before merits briefs were filed, Defendants moved to revoke

Pinder’s IFP status and dismiss the appeal because Pinder was not in imminent danger

of serious physical injury when the appeal was filed. Pinder filed a response

opposing revocation of IFP status; Defendants filed a reply. We directed that the

motion be taken with the case for consideration by the hearing panel.

II. Discussion

Before reaching issues the parties have briefed on the merits, we must first

address Defendants’ pending motion to revoke Pinder’s IFP status, because loss of

IFP status would put Pinder at risk of having the appeal dismissed for failure to pay

appellate filing fees. See § 1915(b).2 

2Defendants’ motion asks us to immediately dismiss the appeal. But our

“normal disposition” when a three strike plaintiff’s complaint fails to allege imminent

danger is to remand to give him the opportunity to reinstate his lawsuit by paying the

filing fee due. Martin, 319 F.3d at 1051. There is good reason for this practice. To

avoid infringing the fundamental right of indigent inmates to have “reasonably

adequate opportunity to file nonfrivolous legal claims,” Lewis v. Casey, 518 U.S.

343, 356 (1996), § 1915(b)(4) expressly provides that “[i]n no event shall a prisoner

be prohibited from . . . appealing a civil or criminal judgment for the reason that the

prisoner has no assets and no means by which to pay the initial partial filing fee.” 

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A. Whether Pinder’s IFP Status Should Be Revoked.

After filing his appeal, Pinder filed a pro se “Declaration of Imminent Danger”

alleging that he qualifies for IFP status on appeal under the imminent danger

exception because Defendants’ continuing failure to treat his peptic ulcer condition,

orthopedic issues in his right shoulder, and diabetic nerve damage in his lower

extremities put him at risk of perforation of his stomach lining, sleep deprivation and

inability to eat due to acid reflux, and amputation of his lower extremities. He further

alleged that Defendants still refuse to return him to his attending physician for

glaucoma care and have continued to delay providing medications prescribed to treat

his glaucoma, putting him at risk of further vision loss when he has already lost 70%

and 60% of the field of vision in his right and left eyes respectively due to glaucoma

and to Defendants’ improper treatment. 

After reviewing the Declaration, a panel of this Court granted leave to proceed

IFP on appeal. This was predictable, given our decision in an earlier appeal that

Pinder’s allegations that he was at risk of blindness due to Defendants failure to

timely provide prescribed glaucoma medication was sufficient to allow him to

proceed IFP on appeal. Pinder v. McDowell, 619 F. App’x 565, 566 (8th Cir. 2015)

(unpublished). The panel appointed appellate counsel, established a briefing

schedule, and requested that the parties brief the claim-by-claim issue. 

Seven weeks later, Defendants filed the pending motion to revoke IFP status

and dismiss the appeal. In support, Defendants submitted an affidavit from Dr. Chris

Horan, a Wellpath employee who oversees administration of medical services for

ADOC, averring that he reviewed Pinder’s medical records attached to the affidavit

from June 25, 2022, to January 13, 2023, and concluded to a reasonable degree of

medical certainty that Pinder was not in imminent danger of serious physical injury

from the medical conditions described in his “Declaration of Imminent Danger” filed

with his appeal. This evidence is not part of the record on appeal and was not

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considered by the district court. Pinder, through appointed counsel, opposed

revocation and dismissal, disputing the factual basis in Defendants’ newly presented

evidence and arguing that dismissal is an improper remedy “[e]ven if IFP revocation

is considered a potentially appropriate remedy.” 

Granting an indigent prisoner leave to proceed IFP is a threshold issue. The

three strikes exception in § 1915(g) “does not close the courthouse doors to prisoners

who frequently file frivolous lawsuits; rather, it merely makes them pay the full

ordinary filing fees sooner rather than later.” Ashley v. Dilworth, 147 F.3d 715, 717

(8th Cir. 1998). Because this is a threshold issue decided at the pleading stage of a

prisoner lawsuit, we have consistently held that a well-pleaded allegation of imminent

danger “must be taken as true before [a prisoner’s] complaint can be dismissed as

insufficient on its face.” McAlphin v. Toney, 281 F.3d 709, 710 (8th Cir. 2002). 

Like other pleadings, the allegation of imminent danger must be plausible, that is, the

prisoner complaint must include “specific fact allegations of ongoing serious physical

injury, or of a pattern of misconduct evidencing the likelihood of imminent serious

physical injury.” Martin, 319 F.3d at 1050; accord Andrews v. Cervantes, 493 F.3d

1047, 1055-57 (9th Cir. 2007). Congress in § 1915(g) also required a showing of

imminent danger when a three-strikes plaintiff appeals an adverse judgment. 

Therefore, even if the district court granted IFP status, Pinder must demonstrate

imminent danger of serious physical injury when he filed the appeal. The same

standard should apply in determining whether he initially made an adequate showing

of imminent danger. See Williams v. Paramo, 775 F.3d 1182, 1189 (9th Cir. 2015). 

The initial grant of IFP status is made based on the three-strikes plaintiff’s ex

parte showing of imminent danger, often before the defendants have even been

served. An indigent prisoner has a strong incentive to obtain IFP status, and a threestrikes prisoner has previously demonstrated a willingness to file frivolous lawsuits

against correctional officials -- the reason Congress added § 1915(g) to the IFP

statute. Accordingly, at least six of our sister circuits “have held that district courts --

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upon challenge by a defendant [after an initial grant of IFP status] -- may conduct a

narrow evidentiary inquiry into the prisoner-litigant’s fear of imminent danger . . .

[and] may consider materials outside of the complaint in conducting this limited

inquiry.” Shepherd v. Annucci, 921 F.3d 89, 94-95(2d Cir. 2019) (emphasis added),

citing Smith v. Wang, 452 F. App’x 292, 293 (4th Cir. 2011); Taylor v. Watkins, 623

F.3d 483, 485-86 (7th Cir. 2010); Fuller v. Myers, 123 F. App’x 365, 368 (10th Cir.

2005); Gibbs v. Roman, 116 F.3d 83, 86-87 (3d Cir. 1997), overruled on other

grounds by Abdul-Akbar v. McKelvie, 239 F.3d 307 (3d Cir. 2001) (en banc); accord

McLeod v. Sec’y, Fla. Dep’t of Corr., 778 F. App’x 663, 665 (11th Cir. 2019). 

Reasons held to justify revocation have not been limited to fraud or willful failure to

disclose the prisoner plaintiff’s litigation history. “Allowing courts to conduct a

limited probe into the plausibility of a prisoner-litigant’s claim of imminent danger

accords with the PLRA’s aims.” Shepherd, 921 F.3d at 95. Although we have not

previously considered the issue, we agree with these decisions. The nature of the

discretionary “narrow evidentiary inquiry” will necessarily vary from case to case. 

This case involves a motion to revoke the grant of IFP status on appeal based

on medical records that are not part of the record on appeal and have only been

reviewed by a prison medical officer. To our knowledge, no circuit has considered

this question. The issue was present in Paramo, 775 F.3d at 1187. In remanding the

dismissal of the three-strikes plaintiff’s § 1983 action on other grounds, the Ninth

Circuit panel observed that determining whether the prisoner showed imminent

danger at the time of the appeal should “ordinarily be conducted through analysis of

the prisoner’s facial allegations” because imminent danger “concerns only a threshold

procedural question” -- when the filing fee must be paid -- and because a court of

appeals is ill-equipped to adjudicate disputed factual matters in the first instance. Id.

at 1189-90. 

We agree these are legitimate concerns. But the purpose of the PLRA – to

reduce the flood of frivolous indigent inmate litigation -- applies as much to the filing

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of an appeal as to the filing of a complaint, and Congress has directed that the

imminent danger inquiry be separately made when each is filed. Moreover, even

though Defendants’ motion to revoke raises potential evidentiary issues, we need not

conduct, or appoint a special master to conduct, the requisite factual inquiry. Rather,

we remand to the district court to initially consider this revocation issue. That court

is already familiar with Pinder’s prior imminent danger allegations and can develop

whatever evidentiary record may be appropriate.3

3

Judge Kelly dissents from our decision to remand this issue for two reasons. 

First, she argues the ad panel’s initial decision to allow Pinder to appeal IFP should

be considered law of the case because Appellees have not established that the ad

panel’s decision to grant Pinder’s motion to proceed IFP on appeal was clearly

erroneous. We disagree. This is a motion to revoke that decision, like a motion to

reconsider an interlocutory order by a district court of a court of appeals. The cases

cited in the dissent recognize that the law-of-the-case doctrine is not controlling “if

substantially different evidence is subsequently introduced.” Our court decided to

have this motion decided “by the panel to which this case is submitted for disposition

on the merits.” Whether to refer the motion to the ad panel, a different panel, or the

full court is an internal procedural question for the court to decide. Whatever panel

received the referral would have to answer the same questions, subject to en banc

review -- will our court consider a motion to revoke IFP status granted on appeal, and

if so, how do we decide this motion on the merits. The initial ad panel order is not

law of the case that governs or precludes those questions.

Second, Judge Kelly argues that, as a matter of law, the motion to revoke must

be denied because it was untimely, a question not argued by Pinder and on which the

dissent would afford Appellees no opportunity to respond. Again, we disagree. 

Whether a seven-week delay was inexcusable and prejudicial are fact-intensive

questions that require input from the parties and are best addressed by the district

court on remand. We are not precluding Pinder from raising the issue with the district

court. The law-of-the-case doctrine does not govern the inquiry. 

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B. Whether the Statute Authorizes Claim-by-Claim Determination 

 of the Imminent Danger Exception.

Pinder argues the district court erred in determining the imminent danger

exception in 28 U.S.C. § 1915(g) on a claim-by-claim basis and dismissing most but

not all of his Eighth Amendment claims in interlocutory orders because he failed to

show imminent danger with respect to those claims.4 Pinder argues that if he can

establish that he satisfies the imminent danger exception with respect to any of his

claims, then § 1915(g) requires that he be permitted to proceed IFP with his entire

complaint, including claims for which there is no showing that he was in imminent

danger when he filed his complaint. The magistrate judge and the district court,

without discussing the issue, adopted the claim-by-claim approach in interlocutory

orders, dismissing without prejudice all claims but one because Pinder failed to

satisfy the imminent danger exception with respect to the other claims. 

4Defendants argue we have no jurisdiction to review these orders because

Pinder noticed only the district court’s grant of summary judgment in favor of

Kerstein and Bennett in his notice of appeal. The contention is without merit. 

Federal Rule of Appellate Procedure 3(c)(4) expressly provides: “The notice of

appeal encompasses all orders that, for purposes of appeal, merge into the designated

judgment or appealable order. It is not necessary to designate those orders in the

notice of appeal” (emphasis added). The Advisory Committee Notes expressly

address this scenario: 

[S]ome claims might be dismissed for failure to state a claim under Fed.

R. Civ. P. 12(b)(6), and then . . . summary judgment under Fed. R. Civ.

P. 56 is granted in favor of the defendant on the remaining claims. That

second order, because it resolves all of the remaining claims, is a final

judgment, and an appeal from that final judgment confers jurisdiction to

review the earlier Fed. R. Civ. P. 12(b)(6) dismissal.

Advisory Committee Note to 2021 Amendments to Fed. R. App. P. 3(c). The same

reasoning applies when the earlier dismissal is under 28 U.S.C. § 1915(g). 

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This is a question of statutory interpretation. “We . . . review de novo a district

court’s interpretation and application of § 1915(g).” Rhinehart v. Weitzell, 964 F.3d

684, 687 (8th Cir. 2020) (citation omitted). “As with any question of statutory

interpretation, we begin with the statute’s plain language.” United States v. Raiburn,

20 F.4th 416, 422 (8th Cir. 2021). Section 1915(g) provides that “[i]n no event shall

a [three strikes] prisoner bring a civil action or appeal a judgment in a civil action or

proceeding under this section . . . unless the prisoner is under imminent danger of

serious physical injury.” In this context, does “civil action” mean the three-strikes

prisoner’s entire case or appeal, or does it refer to each individual claim that is part

of the entire case? The issue is perplexing because it has arisen in various contexts

in interpreting the PLRA with answers that seem inconsistent, at least at first blush.

-- § 1915(g) defines a “strike” as “an action or appeal . . . that was dismissed

on the grounds that it is frivolous, malicious, or fails to state a claim upon which

relief may be granted.” In this context, “action” “unambiguously means an entire

case or suit” and therefore if some claims were dismissed as frivolous or for failure

to state a claim, but other claims were dismissed for other reasons, the dismissal was

not a strike. See Orr v. Clements, 688 F.3d 463, 466 (8th Cir. 2012); Ellis v. Davis,

654 F. App’x 250, 252 (8th Cir. 2016) (unpublished per curiam), citing Tolbert v.

Stevenson, 635 F.3d 646, 649-55 (4th Cir. 2011).

-- Another PLRA provision, § 1915A, which establishes initial screening

procedures for review of a prisoner’s complaint, states that the court “shall identify

cognizable claims or dismiss the complaint, or any portion of the complaint, if the

complaint (1) is frivolous, malicious, or fails to state a claim upon which relief may

be granted; or (2) seeks monetary relief from a defendant who is immune from such

relief.” § 1915A(b) (emphasis added). This is evidence Congress knew how to

distinguish between a lawsuit as a whole and individual clams within a lawsuit. And 

§ 1915A(b) does not list a three-striker’s failure to allege imminent danger as one of

the reasons that a screening district court may dismiss certain claims from his lawsuit.

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-- The PLRA provides that “[n]o action shall be brought with respect to prison

conditions . . . by a prisoner confined . . . until such administrative remedies as are

available are exhausted.” 42 U.S.C. § 1997e(a). Despite this wording, we held in

McAlphin v. Toney that the imminent danger exception in § 1915(g) “must be limited

to imminent danger claims that have been properly exhausted.” 375 F.3d 753, 755

(8th Cir. 2004). In Jones v. Bock, 549 U.S. 199, 220-24 (2007), resolving a conflict

in the circuits, a unanimous Supreme Court agreed, rejecting a “total exhaustion”

alternative and holding that, when an action includes exhausted and unexhausted

claims, the district court applies “the more typical claim-by-claim approach,”

dismisses the unexhausted claims, and allows the exhausted claims to proceed. 

Responding to the argument that Congress used the word “action” instead of “claim,”

the Court observed that the phrase “‘no action shall be brought’ is boilerplate

language [like] many instances in the Federal Code where similar language is used.” 

Id. at 220. 

Though we have not decided this issue, it has been extensively analyzed by

other circuits. All published circuit decisions directly addressing the propriety of the

claim-by-claim approach to the imminent danger exception have rejected it.5 At least

two other circuits, in unpublished decisions, have also rejected this approach. See

Newkirk v. Kiser, 812 F. App’x 159, 160 (4th Cir. 2020); Boles v. Colo. Dep’t of

Corr., 794 F. App’x 767, 772 n.5 (10th Cir. 2019). In addition, the D.C. Circuit has

assumed, without expressly deciding, that if a three-striker satisfies the imminent

danger exception with respect to one claim, then all otherwise permissible claims can

proceed. See Ibrahim v. District of Columbia, 463 F.3d 3 (D.C. Cir. 2006). 

5See Chavis v. Chappius, 618 F.3d 162, 171-72 (2d Cir. 2010); Gibbs, 116 F.3d

at 87 n.7; Ciarpaglini v. Saini, 352 F.3d 328, 330 (7th Cir. 2003); Andrews, 493 F.3d

at 1053-54.

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These decisions were based in part on principles of statutory construction --

“statutory references to an ‘action’ have not typically been read to mean that every

claim included in the action must meet the pertinent requirement.” Andrews, 493 F.3d

at 1054, quoting Jones, 549 U.S. at 221. Moreover, “[s]atisfaction of the ‘imminent

danger’ element does no more than permit the complainant to proceed with his or her

cause of action without prepayment of the filing fee in full. . . . [T]he merits of the

cause of action itself are then available for consideration and decision.” Gibbs, 116

F.3d at 87 n.7; see Andrews, 493 F.3d at 1054-55.

After the district court issued its final judgment in this case, we addressed this

claim-by-claim issue for the first time in Charron v. Allen, 37 F.4th 483 (8th Cir.

2022). In Charron, the district court dismissed some of the three-strike plaintiff’s

claims because the plaintiff failed to demonstrate that he met the imminent danger

exception with respect to those claims, just as the district court dismissed most of

Pinder’s claims in this case. Id. at 486-87. In Charron, however, the plaintiff only

appealed his claims against one defendant, and the district court had allowed all the

plaintiff’s claims against that defendant to proceed under the imminent danger

exception. Id. at 487. 

On appeal, we noted that a “claim-by-claim approach to the ‘imminent danger’

exception was consistent with the plain language of § 1915A(b) and finds some

support in our prior decisions” that require proper exhaustion of each imminent

danger claim. Id. However, ”this interpretation has been rejected by other circuits.” 

Id. We concluded this is a “serious issue that no doubt needs greater attention if

presented in a proper case.” Id. We did not address the issue in Charron because the

district court granted IFP status on all the claims asserted against the defendant on

appeal (“[i]n other words . . . the district court granted . . . full § 1915(g) relief”), and

because Charron did not appeal the without-prejudice dismissal of other defendants,

a “partial dismissal of Charron’s entire complaint [that] was arguably contrary to the

above-cited cases from other circuits.” Id.

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This appears to be a case that squarely presents this issue. The district court

concluded that Pinder showed the requisite imminent danger at the time he filed his

complaint from the risk that his shoulder will suffer further damage from being

denied a double-cuff script. If the claim-by-claim approach is not a proper

interpretation of the § 1915(g) exception, as our sister circuits have concluded, then

the imminent danger exception was satisfied and the court should have proceeded

with the case as to all claims.

“Some circuits have also required ‘an adequate nexus between the claims [a

three-strikes plaintiff] seeks to pursue and the imminent danger he alleges.’” Charron,

37 F.4th at 486 (quotation omitted).6 In the leading case, the Second Circuit defined

the issue as “(1) whether the imminent danger of serious physical injury that a

three-strikes litigant alleges is fairly traceable to unlawful conduct asserted in the

complaint and (2) whether a favorable judicial outcome would redress that injury.” 

Pettus, 554 F.3d at 298-99. Absent this requirement, the court noted, “an indigent

prisoner with a history of filing frivolous complaints could, by merely alleging an

imminent danger, file an unlimited number of lawsuits, paying no filing fee, for

anything from breach of a consumer warranty to antitrust conspiracy.” Id. at 297. 

However, no circuit rejecting the claim-by-claim approach has decided whether a

nexus requirement would nonetheless apply to a three-strike indigent prisoner’s

complaint that includes multiple claims against multiple defendants, only some of

which satisfy the imminent danger requirement. Cf. Chavis, 618 F.3d at 171. That

6See Pettus v. Morgenthau, 554 F.3d 293, 296-98 (2d Cir. 2009); Ball v.

Hummel, 577 F. App’x 96, 96 n.1 (3d Cir. 2014); Meyers v. Comm’r of Soc. Sec.

Admin., 801 F. App’x 90, 96 (4th Cir. 2020); Prescott v. UTMB Galveston Tex., 73

F.4th 315, 321 (5th Cir. 2023); Ray v. Lara, 31 F.4th 692, 700 (9th Cir. 2022); Boles,

794 F. App’x at 770; Pinson v. U.S. Dep’t of Just., 964 F.3d 65, 71 (D.C. Cir. 2020);

Fourstar v. United States, 950 F.3d 856, 859 (Fed. Cir. 2020). 

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appears to be yet another serious issue that is best addressed initially by the district

court on remand.

 

It is important to emphasize that the claim-by-claim issue is narrow. A threestrikes indigent prisoner who satisfies the imminent danger exception in the district

court or on appeal is still subject to dismissal for the reasons stated in § 1915A(b), he

must fully comply with the PLRA exhaustion requirements in 42 U.S.C. § 1997e, and

he is subject to being time-barred under the applicable statutes of limitations. 

C. The Double-Cuff Claim.

Pinder appeals the district court’s grant of summary judgment on his claim of

deliberate indifference against Dr. Kerstein and APN Bennett for declining to renew

his double-cuff script. This issue was fully litigated on the merits and is reflected in

the district court’s final order. However, as we may lack jurisdiction to consider that

ruling if Pinder’s IFP status on appeal is revoked, we decline to consider the issue at

this time. It remains with the case on remand. 

III. Conclusion

The judgment of the district court is vacated and the case is remanded for

further proceedings not inconsistent with this opinion. 

KELLY, Circuit Judge, concurring in part and dissenting in part.

I concur in Parts I and II.B of the court’s opinion,7 but because I would deny

Appellees’ motion to revoke Pinder’s IFP status, I dissent as to Parts II.A and II.C. 

7

In particular, I agree with the court that the weight of authority rejects the

outlier claim-by-claim approach that the district court applied when dismissing most

of Pinder’s claims through interlocutory rulings. See Charron, 37 F.4th at 487.

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We determine whether a three-strike plaintiff is under imminent danger of

serious physical injury based on their allegations. McAlphin, 281 F.3d at 710; see

Williams, 775 F.3d at 1189–90 (emphasizing that the imminent danger inquiry “be

conducted through analysis of the prisoner’s facial allegations and that these

allegations be liberally construed”). And we have long recognized that “specific fact

allegations of ongoing serious physical injury, or of a pattern of misconduct

evidencing the likelihood of imminent serious physical injury” satisfy the imminent

danger exception. Martin, 319 F.3d at 1050; see Charron, 37 F.4th at 487 n.3. An

administrative panel concluded that Pinder’s allegations satisfied that standard, and

I have no reason to question that decision. 

The administrative panel’s decision to let Pinder proceed IFP also constitutes

the law of the case, which we generally “adhere[] to in the absence of clear error or

manifest injustice.” See Thompson v. United States, 872 F.3d 560, 564–65 (8th Cir.

2017) (citation omitted); cf. Maxfield v. Cintas Corp., No. 2, 487 F.3d 1132, 1135

(8th Cir. 2007) (“We will consider a previously decided issue under the law-of-thecase doctrine ‘only if substantially different evidence is subsequently introduced or

the decision is clearly erroneous and works manifest injustice.’” (citation omitted)).

“For the law of the case doctrine to have any application, . . . the prior administrative

panel must have actually decided the specific . . . issue.” Id. at 565 (quoting Nyffeler

Constr., Inc. v. Sec’y of Lab., 760 F.3d 837, 841–42 (8th Cir. 2014)). Here, the

administrative panel could only rule on Pinder’s motion to proceed IFP after deciding

whether he sufficiently alleged he was in imminent danger of serious physical injury

at the time of appeal. See 28 U.S.C. § 1915(g); Ashley, 147 F.3d at 717. Thus, the

court’s order granting IFP status necessarily reflects the panel’s decision that Pinder

met the imminent danger exception. Cf. Nordgren v. Hennepin Cnty., 96 F.4th 1072,

1077 (8th Cir. 2024) (reconsidering a motion to dismiss previously denied by an

administrative panel when the panel’s reasoning for its decision could not be

discerned).

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Appellees have not convinced me that the administrative panel’s decision to

grant Pinder’s motion to proceed IFP on appeal was clearly erroneous. To support

their request for revocation, Appellees submitted voluminous medical records to

show that Pinder was not in imminent danger when he filed his appeal. But some

records were from the months before Pinder filed his appeal, and others were from

the months that followed. Since “the requisite imminent danger of serious physical

injury must exist at the time . . . the appeal is filed,” some of these records are likely

irrelevant to the imminent danger inquiry. See Martin, 319 F.3d at 1050 (emphasis

added); see also Pinson, 964 F.3d at 70 (agreeing that for an appeal filed in March,

incidents that occurred as early as August of that same year should not be considered

when assessing imminent danger). At a minimum, in asking us to reverse the previous

grant of IFP status, Appellees have not identified clear error in the administrative

panel’s decision to grant Pinder’s motion based on his allegations. 

There is also no indication that the administrative panel’s decision to grant

Pinder IFP status constitutes manifest injustice. Appellees fail entirely to address their

delay in responding to Pinder’s motion. Pinder’s motion to proceed IFP on appeal

followed two unsuccessful motions, which the district court denied on the basis that

an IFP appeal would not be taken in good faith. See R. App. P. 24(a)(2), 24(a)(5);

Coppedge v. United States, 369 U.S. 438, 446 (1962) (noting that a district court’s

certificate that a plaintiff’s appeal lacks good faith is “entitled to weight” but “is not

conclusive”). Appellees could have well anticipated Pinder’s motion in this court, yet

they neither responded to nor resisted it. See Fed. R. App. P. 27(a)(3)(A) (requiring

a response to “be filed within 10 days after service of the motion”). About one month

after Pinder filed his motion, a panel of this court granted him IFP status, appointed

him counsel, and directed the parties to brief the claim-by-claim issue. It was not until

nearly two months later that Appellees filed their motion, asking this court to revoke

Pinder’s IFP status or dismiss his appeal. But when they did, nothing in their

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submission suggested that upholding the administrative panel’s order would amount

to manifest injustice. 

The district court is undoubtedly in the better position to conduct an

evidentiary inquiry when a plaintiff’s fear of imminent danger is challenged. But here,

the plaintiff is an appellant, who has already been granted IFP status, and to ask the

district court to conduct the inquiry at this stage raises challenging procedural and

jurisdictional questions. Doing so also risks “‘spawn[ing] additional litigation and

creat[ing] mini-trials over whether a prisoner has shown an imminent danger,’ adding

to, rather than reducing, ‘the flood of litigation brought by prisoners,’” thereby

undermining Congress’s intent in enacting the PLRA. Pinson, 964 F.3d at 70–71

(quoting Williams, 775 F.3d at 1190). And more immediately, it delays any recourse

for Pinder, while unsettling the expectations of parties and litigants beyond this case. 

For all these reasons, I respectfully dissent from the court’s order to remand

Appellees’ motion to revoke.

______________________________

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