Jabari J. Johnson v. Meridith McGrath

The summaries of the Colorado Court of Appeals published opinions
constitute no part of the opinion of the division but have been prepared by
the division for the convenience of the reader. The summaries may not be
cited or relied upon as they are not the official language of the division.
Any discrepancy between the language in the summary and in the opinion
should be resolved in favor of the language in the opinion.

SUMMARY
January 11, 2024

2024COA5

No. 23CA0469, Johnson v McGrath — Courts and Court
Procedure — Inmate Lawsuits — Successive Claims —
Imminent Danger of Serious Physical Injury

A division of the court of appeals determines, as a matter of

first impression, how a court should analyze an inmate’s claim that

the “imminent danger of serious physical injury” exception under

section 13-17.5-102.7(2), C.R.S. 2023, is applicable, which would

entitle the inmate to proceed as a poor person despite being barred

under the three strikes rule in section 13-17.5-102.7(1). The

division concludes that to successfully allege the imminent danger

exception, (1) the allegation of serious physical injury must be

specific; (2) the specifically alleged danger must be imminent; and

(3) there must be allegations showing a nexus between the claims

for relief and the allegation of imminent serious physical injury.
COLORADO COURT OF APPEALS 2024COA5

Court of Appeals No. 23CA0469
El Paso County District Court No. 23CV33
Honorable Gregory R. Werner, Judge

Jabari J. Johnson,

Plaintiff-Appellant,

v.

Meridith McGrath,

Defendant-Appellee.

JUDGMENT AFFIRMED

Division C
Opinion by JUDGE KUHN
J. Jones and Dunn, JJ., concur

Announced January 11, 2024

Jabari J. Johnson, Pro Se

No Appearance for Defendant-Appellee
¶1 Plaintiff, Jabari J. Johnson, is an inmate in a Colorado

Department of Corrections (DOC) facility and a frequent filer in the

Colorado courts. In this action, Johnson challenges the district

court’s judgment dismissing his civil complaint for failure to pay a

filing fee. He contends that he alleged the imminent danger of

serious physical injury exception (the imminent danger exception)

to the “three strikes rule” on prisoner filings, entitling him to

proceed in forma pauperis (IFP).1

¶2 We hold that when an inmate is barred from proceeding IFP

because of the three strikes rule, the district court must review for

— but need not make a separate finding regarding — the imminent

danger exception. Here, while Johnson raised the issue of

imminent danger of serious physical injury, when analyzed under

the test set forth below, he did not sufficiently allege the imminent

danger exception. Thus, the district court did not err by denying

1 The “three strikes rule” bars an inmate from proceeding IFP if the

inmate has brought three or more civil actions based upon prison
conditions that have been dismissed on the grounds that they were
frivolous, groundless, or malicious or failed to state a claim upon
which relief may be granted. § 13-17.5-102.7, C.R.S. 2023.

1
Johnson’s motion to proceed IFP because he is barred by the three

strikes rule. We affirm.

I. Background

¶3 Johnson’s complaint challenges conditions related to his

incarceration and complains about the actions of a DOC employee.

Johnson requested that the district court allow him to proceed IFP

under section 13-17.5-103, C.R.S. 2023, which would allow him to

move forward with his inmate lawsuit without prepaying service

and filing fees.

¶4 Upon reviewing Johnson’s request to proceed IFP, the district

court applied the three strikes rule and denied his request based on

section 13-17.5-102.7(1), C.R.S. 2023. It found that Johnson had,

on three or more occasions, brought civil actions based on prison

conditions that had been dismissed on the grounds that they were

frivolous, groundless, or malicious or failed to state a claim upon

which relief may be granted. The district court then dismissed

Johnson’s suit for failure to pay filing and service fees, and Johnson

appealed. On appeal, Johnson contends that the district court

2
erred by denying his request to proceed IFP because he alleged that

he was in imminent danger of serious physical injury.2

¶5 The district court did not address section 13-17.5-102.7(2),

which provides an exception to the three strikes rule for an inmate

who “alleges sufficient facts which, if assumed to be true, would

demonstrate that the inmate is in imminent danger of serious

physical injury.” Implicit in Johnson’s contention on appeal is the

question whether the district court was required to make a finding

on the exception to the three strikes rule.

¶6 Johnson has filed eight cases in the El Paso County District

Court (20CV112, 20CV121, 20CV274, 21CV44, 21CV320, 22CV52,

22CV186, and 22CV208), and all have been dismissed. On

September 1, 2022, a division of our court issued an opinion in

Johnson v. Executive Director of the Colorado Department of

Corrections, (Colo. App. No. 21CA1439, Sept. 1, 2022) (not

published pursuant to C.A.R. 35(e)). In that case, Johnson filed an

appeal from a Fremont County District Court order dismissing his

2 Johnson raised three iterations of this same issue in his notice of

appeal. However, in his opening brief, he argues all three issues as
one. Therefore, we treat his claim as a single contention.

3
complaint for failing to pay filing fees. In affirming the order, the

division noted that Johnson had filed twenty-five complaints in

Fremont County in 2020 alone. Eleven of those complaints had

been dismissed as frivolous, groundless, and vexatious, and

fourteen had been dismissed for failure to state a claim upon which

relief could be granted. There is no dispute that Johnson has

accumulated more than the three strikes required by section

13-17.5-102.7(1).

II. Standard of Review and Applicable Law

¶7 Whether a litigant is indigent and thus allowed to file a civil

action without payment of costs is generally a matter committed to

the trial court’s discretion. Collins v. Jaquez, 15 P.3d 299, 301

(Colo. App. 2000). The ability to proceed without paying costs “in a

civil case is a privilege, not a right, fundamental or otherwise.”

Farmer v. Raemisch, 2014 COA 3, ¶ 12.

¶8 Section 13-17.5-102.7 and several related statutes limit the

trial court’s discretion to permit IFP filings in civil actions brought

by prisoners. Whether the trial court properly applied those

statutes is a question of law we review de novo. See Schwartz v.

Owens, 134 P.3d 455, 459 (Colo. App. 2005). We also review de

4
novo a district court’s order dismissing a case as a matter of law

and questions of statutory construction. Cisneros v. Elder, 2022

CO 13M, ¶ 21; Rueb v. Rich-Fredericks, 2020 COA 168, ¶ 7.

¶9 “In construing a statute, our goal is to effectuate the

legislature’s intent.” Dep’t of Revenue v. Agilent Techs., Inc., 2019

CO 41, ¶ 16. In doing so, we “consider the entire statutory scheme

to give consistent, harmonious, and sensible effect to all of its parts,

and we construe words and phrases in accordance with their plain

and ordinary meanings.” Cisneros, ¶ 21 (quoting Ryser v. Shelter

Mut. Ins. Co., 2021 CO 11, ¶ 14). If the statutory language is clear

and unambiguous, then we do not resort to other rules of statutory

construction, and we presume that the General Assembly intends a

just and reasonable result. Id. “We, however, are not at liberty to

alter the wording of a statute. Nor may we interpret statutory

language so as to render any of that language superfluous.” Harvey

v. Cath. Health Initiatives, 2021 CO 65, ¶ 33.

¶ 10 Johnson appears pro se, and his complaint is difficult to read;

however, “[p]leadings by pro se litigants must be broadly construed

to ensure that they are not denied review of important issues

because of their inability to articulate their argument like a lawyer.”

5
Jones v. Williams, 2019 CO 61, ¶ 5. It is not this court’s role,

however, to rewrite a pro se litigant’s pleadings. Nor may we act as

an advocate for a pro se litigant. See People v. Cali, 2020 CO 20,

¶ 34.

III. The District Court Must Review for, But Does Not Need to
Make a Specific Finding Regarding, Section 13-17.5-102.7(2)

¶ 11 To address Johnson’s contention, we must first determine

whether the imminent danger exception to the three strikes rule

requires the district court to make explicit findings about the

alleged danger.

¶ 12 Section 13-17.5-103 states that an inmate is not prohibited

from filing a civil action just because “the inmate has no assets and

no means by which to pay” fees. The three strikes rule in section

13-17.5-102.7(1) is an exception to that general rule:

No inmate who on three or more occasions has
brought a civil action based upon prison
conditions that has been dismissed on the
grounds that it was frivolous, groundless, or
malicious or failed to state a claim upon which
relief may be granted or sought monetary relief
from a defendant who is immune from such
relief, shall be permitted to proceed as a poor
person in a civil action based upon prison
conditions under any statute or constitutional
provision.

6
¶ 13 Section 13-17.5-103(2) is, in turn, an exception to subsection

(1). It provides that an inmate may proceed in an action,

notwithstanding having three strikes, without paying the filing fee

“if the judge finds that the action alleges sufficient facts which, if

assumed to be true, would demonstrate that the inmate is in

imminent danger of serious physical injury.” § 13-17.5-102.7(2).

¶ 14 As an initial matter, we conclude that a district court

reviewing a motion and complaint under section 13-17.5-103 and

section 13-17.5-102.7 must determine whether the imminent

danger exception applies. The court should review the initial filings

for assertions that, if taken as true, would demonstrate the inmate

is in imminent danger of serious physical injury and would thus

trigger the exception in subsection (2).3 This is so because an

inmate’s ability to proceed without paying filing fees is determined

before a responsive pleading is filed, and, therefore, the district

3 We note that Johnson used preprinted form JDF 201 to request a

waiver of filing fees. That form does not provide any space to
address the imminent danger exception. See JDF 201, Inmate
Motion Requesting to File Without Prepayment of Filing/Service
Fees (revised Apr. 2018), https://perma.cc/G4FX-DFAR. Thus, any
allegations about the exception would only have been in the
complaint.

7
court must undertake that review on its own to give effect to the

statute.

¶ 15 Turning to the findings themselves, the plain language of

section 13-17.5-102.7 demonstrates that the district court is not

required to make specific factual findings regarding the imminent

danger exception in every case. However, if the district court

determines that the exception applies, then it should make

whatever findings are appropriate under the facts of the case.

¶ 16 Subsection (2) provides that an inmate may proceed IFP,

notwithstanding the three strikes rule, if the court finds imminent

danger of serious physical injury. The structure of this clause is

conditional. It envisions that a judge may or may not make

findings. This also tracks the purpose of subsection (2), which is an

exception to an exception. There would be no reason for the court

to make findings about the imminent danger of serious physical

injury if the inmate hasn’t pleaded any allegations to support the

exception in the first place.

¶ 17 Thus, when an inmate with three strikes makes a proper

request to proceed IFP, section 13-17.5-102.7(2) requires the

district court to review the initial filings to see if the inmate has

8
alleged sufficient facts, if taken as true, to trigger the imminent

danger exception to the three strikes rule. If the inmate alleges

sufficient facts establishing that this exception applies, as described

below, then the district court should allow the plaintiff to proceed

IFP. See § 13-17.5-102.7(2). But if the plaintiff fails to allege

sufficient facts, then subsection (2) does not apply, and the district

court must deny the request to proceed IFP under subsection (1).

IV. Imminent Danger of Serious Physical Injury Test

¶ 18 Having articulated the review process required by section

13-17.5-102.7, we turn to Johnson’s contention that the district

court erred by denying his request to proceed IFP because he

alleged that he was in imminent danger of serious physical injury.

¶ 19 The district court denied Johnson’s request, without making

specific findings regarding the imminent danger exception, because

he had reached his three-strike limit.4 In his complaint, Johnson

4 In Johnson v. Executive Director of the Colorado Department of

Corrections, (Colo. App. No. 21CA1439, Sept. 1, 2022) (not
published pursuant to C.A.R. 35(e)), a division of this court
addressed whether Johnson has incurred three strikes under
section 13-17.5-102.7(1), C.R.S. 2023. He has. Therefore, we limit
our analysis to whether he has alleged sufficient facts in his initial
filings demonstrating that he is in imminent danger of serious

9
broadly alleged that he was in “imminent danger” and expressed a

fear of being killed, assaulted, or harmed.

¶ 20 No Colorado case has addressed how courts should analyze

whether an inmate has alleged “sufficient facts which, if assumed to

be true, would demonstrate that the inmate is in imminent danger

of serious physical injury.” § 13-17.5-102.7(2). Because section

13-17.5-102.7 is similar to its federal counterpart, we find

analogous federal cases persuasive and determine that courts

should apply a three-part test to resolve this question. See Furlong

v. Gardner, 956 P.2d 545, 551 (Colo. 1998) (“In interpreting a state

statute, we often turn to the analogous federal statute and related

case law.”).

¶ 21 We conclude that to successfully allege section

13-17.5-102.7(2)’s imminent danger exception, (1) the allegation of

serious physical injury must be specific; (2) the specifically alleged

danger must be imminent; and (3) there must be allegations

showing a nexus between the claims for relief and the allegation of

imminent serious physical injury.

physical injury, entitling him to proceed IFP despite his numerous
other filings.

10
A. Specific Allegation of Serious Physical Injury

¶ 22 First, the allegation of serious physical injury must be specific.

Under section 13-17.5-102.7(2), “the judge [must] find[] that the

action alleges sufficient facts” to invoke the exception. By the

statute’s plain language, sufficient facts are those that, when taken

as true, demonstrate a claim for imminent danger of serious

physical injury. As with any civil claim, the factual allegations

must be specific enough to support a claim for relief. See, e.g.,

Patterson v. James, 2018 COA 173, ¶ 23 (“To survive summary

dismissal for failure to state a claim, a party must plead sufficient

facts that, if taken as true, suggest plausible grounds to support a

claim for relief.” (citing Warne v. Hall, 2016 CO 50, ¶ 24)). Claims of

physical injury that are so vague or conclusory as to deprive the

district court of the ability to make the required findings are not

sufficient to support the exception to the three strikes rule in

section 13-17.5-102.7(2). See Warne, ¶ 27 (concluding that claims

that are conclusory are not entitled to an assumption that they are

true).

¶ 23 This interpretation aligns with other jurisdictions’ reading of

28 U.S.C. § 1915(g), the federal three strikes rule, which contains a

11
similar exception.5 See Hafed v. Fed. Bureau of Prisons, 635 F.3d

1172, 1180 (10th Cir. 2011) (If alleging lack of medical care, an

inmate “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.’ He should identify at least ‘the

general nature of the “serious physical injury” he asserts is

imminent.’ ‘[V]ague and utterly conclusory assertions’ are

insufficient. ‘[C]redible, uncontroverted allegations of physical

threats and attacks’ would be sufficient, however.”) (citations

omitted), abrogated on other grounds by Coleman v. Tollefson, 575

U.S. 532, 534 (2015); White v. Colorado, 157 F.3d 1226, 1231 (10th

Cir. 1998).

B. Allegation that Danger of Serious
Physical Injury is Imminent

¶ 24 Second, the specific allegation of serious physical injury must

“demonstrate that the inmate is in imminent danger.”

§ 13-17.5-102.7(2) (emphasis added). “Danger” means “[p]eril;

exposure to harm, loss, pain, or other negative result.” Black’s Law

5 The federal statute lacks a separate subsection for the imminent

danger exception and does not afford inmates an assumption of
truth in their allegations.

12
Dictionary 493 (11th ed. 2019). In the criminal context, the term

“imminent danger” is defined as “[a]n immediate, real threat to one’s

safety that justifies the use of force in self-defense.” Id. “Imminent”

alone means “threatening to occur immediately; dangerously

impending.” Id. at 898. Common language dictionaries define

imminent as “ready to take place: happening soon.” Merriam-

Webster Dictionary, https://perma.cc/5QRT-YTT5.

¶ 25 Section 13-17.5-102.7(2)’s present tense “is,” combined with

the adjective “imminent,” dictates that the “danger” includes only

harms that are occurring now or immediately thereafter. Under

this factor, an inmate must allege a danger of serious physical

injury that is happening at the time of filing or is about to happen.

This encompasses harm that is ongoing at the time of filing.

However, it does not encompass a danger that has already occurred

(and has ended) or might occur in the remote future. See Fuller v.

Wilcox, 288 F. App’x 509, 511 (10th Cir. 2008) (“In order to meet the

‘imminent danger’ requirement, ‘the harm must be imminent or

occurring at the time the complaint is filed.’” (quoting Ciarpaglini v.

Saini, 352 F.3d 328, 330 (7th Cir. 2003))); Abdul-Akbar v. McKelvie,

239 F.3d 307, 313 (3d Cir. 2001) (“Someone whose danger has

13
passed cannot reasonably be described as someone who ‘is’ in

danger, nor can that past danger reasonably be described as

‘imminent.’”); Ashley v. Dilworth, 147 F.3d 715, 717 (8th Cir. 1998)

(“As the statute’s use of the present tense verbs ‘bring’ and ‘is’

demonstrates, an otherwise ineligible prisoner is only eligible to

proceed IFP if he is in imminent danger at the time of filing.

Allegations that the prisoner has faced imminent danger in the past

are insufficient to trigger this exception to § 1915(g).”). Thus, an

inmate seeking monetary damages based on a prior alleged assault

would not satisfy this imminence factor as that claim seeks to

recover damages for a past harm rather than to prevent an

imminent danger of serious physical injury.

C. Nexus Between Claims and Alleged
Danger of Serious Physical Injury

¶ 26 Third, there must be a nexus between the claim and the

allegation of imminent serious physical injury. Put simply, an

inmate alleging imminent danger must also seek relief that would

alleviate that danger.

¶ 27 In enacting subsection (2)’s exception to the three strikes rule,

the legislature created a last resort for individuals who are

14
genuinely in danger of serious physical harm despite their repeated

prior frivolous, groundless, malicious, or meritless filings based on

prison conditions. An inmate facing an imminent danger of serious

physical injury can file suit seeking to prevent that harm. However,

if an inmate is seeking relief that is designed to remedy past wrongs

or would not alleviate the imminent danger alleged, then the claims

cannot support the invocation of the imminent danger exception

under section 13-17.5-102.7(2).

¶ 28 This nexus requirement ensures that the imminent danger

exception to the three strikes rule actually addresses the alleged

danger while also advancing “the General Assembly’s goal of

deterring frivolous and meritless prisoner lawsuits.” Farmer, ¶ 18.

The General Assembly’s legislative declaration for title 13, article

17.5 says that

the state has a strong interest in limiting
substantially frivolous, groundless, or
vexatious inmate lawsuits that impose an
undue burden on the state judicial system.
While recognizing an inmate’s right to access
the courts for relief from unlawful state
actions, the [G]eneral [A]ssembly finds that a
significant number of inmates file substantially
frivolous, groundless, or vexatious lawsuits.

15
. . . The [G]eneral [A]ssembly, therefore,
determines that it is necessary to enact
legislation that promotes efficiency in the
disposition of inmate lawsuits by providing for
preliminary matters to be determined by
magistrates and to provide for sanctions
against inmates who are allowed to file claims
against public defendants and whose claims
are dismissed as frivolous.

§ 13-17.5-101(1)-(2), C.R.S. 2023.

¶ 29 Thus, for example, if an inmate alleges a specific impending

assault, the claim for relief must be directed toward that alleged

harm. But a claim for an injunction requiring a specific food at the

cafeteria would not show the necessary nexus between imminent

danger and the sought after remedy.

¶ 30 Federal courts also often apply the requirement that there be a

nexus between an inmate’s claims and the imminent danger when

analyzing petitions under § 1915(g). See, e.g., Pettus v. Morgenthau,

554 F.3d 293, 296 (2d Cir. 2009) (“We agree with the district court

that § 1915(g) allows a three-strikes litigant to proceed IFP only

when there exists an adequate nexus between the claims he seeks

to pursue and the imminent danger he alleges.”); Ball v. Hummel,

577 F. App’x 96, 96 n.1 (3d Cir. 2014) (per curiam) (“To fulfill the

‘imminent danger’ requirements, she must demonstrate an

16
adequate nexus between the claims [s]he seeks to pursue and the

‘imminent danger [s]he alleges.’” (quoting Pettus, 554 F.3d at 296))

(alterations in original); Pinson v. U.S. Dep’t of Just., 964 F.3d 65,

73 (D.C. Cir. 2020) (“We see no need to articulate a precise test for

evaluating section 1915(g)’s nexus requirement because, whatever

the standard, Gorbey’s claims bear no relationship at all to the

dangers alleged.”); McFadden v. U.S. Dep’t of Just., 270 F. Supp. 3d

82, 89 (D.D.C. 2017) (“[T]he language of the exception itself is, at

most, incomplete; it neither imposes a nexus requirement nor

forecloses the imposition of such a requirement. But, more

importantly, the exception cannot be read in isolation from its

‘context’ and ‘place in the overall statutory scheme,’ and that

context supports a nexus requirement.”) (citations omitted). But see

Vandiver v. Prison Health Servs., Inc., 727 F.3d 580, 588 (6th Cir.

2013) (“[W]e decline to reach whether § 1915(g) incorporates a

nexus requirement, as [defendant] would not prevail even if we were

to adopt the Second Circuit standard.”); Barber v. Krepp, 680 F.

App’x 819, 821 (11th Cir. 2017) (per curiam) (declining to decide

whether “§ 1915(g)’s ‘imminent danger’ exception requires proof of

. . . a nexus” because, even if it did, the plaintiff had alleged such “a

17
nexus between the harm he has suffered and the defendant’s

inaction”).

¶ 31 The Second Circuit Court of Appeals articulated the rationale

for this rule well:

[T]here must be a nexus between the imminent
danger a three-strikes prisoner alleges to
obtain IFP status and the legal claims asserted
in his complaint. . . . By analogy to our
ordinary standing rules, we think that the
statute requires that the prisoner’s complaint
seek to redress an imminent danger of serious
physical injury and that this danger must be
fairly traceable to a violation of law alleged in
the complaint.

The law of standing provides the most natural
analogy for giving content to the nexus
requirement because the statute identifies a
particular injury-in-fact (i.e., the imminent
danger of serious physical injury) that
Congress singled out for special protection. . . .

. . . Absent some nexus between a complaint’s
claims and its allegation that a plaintiff is
under imminent danger of serious physical
harm, the injury-in-fact that Congress so
carefully excepted from the general
requirement that a three-strikes litigant pay
his filing fees could go unaddressed by the
litigation — a result clearly contrary to the
raison d’être of the exception itself. When, in
contrast, a complaint seeks to redress an
imminent danger that is fairly traceable to
allegedly unlawful conduct complained of in
the pleading, the three-strikes litigant has

18
shown that he fits squarely within § 1915(g)’s
‘escape hatch’ and that payment of a filing fee
should be excused.

Pettus, 554 F.3d at 297-98.6

¶ 32 Therefore, to satisfy the third factor, an inmate’s complaint

must contain allegations showing a sufficient nexus between the

factual allegations of imminent physical injury and the legal claims

for which the inmate seeks redress.

V. Johnson’s Allegations

¶ 33 Johnson’s complaint fails to allege sufficient facts that, if

assumed to be true, would demonstrate that he is in imminent

danger of serious physical injury. Accordingly, the district court did

not err by denying his motion to proceed IFP.

A. Johnson’s Allegations Are Not Specific

¶ 34 Johnson’s complaint does not sufficiently articulate who is

subjecting him to imminent danger of serious physical injury.

6 Wimberly v. Ettenberg, 194 Colo. 163, 168, 570 P.2d 535, 539

(1977), provides the standing requirements under Colorado law:
“The proper inquiry on standing is whether the plaintiff has suffered
injury in fact to a legally protected interest as contemplated by
statutory or constitutional provisions.”

19
While he does allege that he was or may be in danger, he fails to

make specific allegations tying individuals to that danger.

¶ 35 Johnson names Merideth McGrath as the defendant; however,

he does not say who she is in his complaint, his briefing, or the

provided record.7 Additionally, the vast majority of Johnson’s

claims do not assert credible, uncontroverted allegations of physical

threats and attacks. See Hafed, 635 F.3d at 1180. Instead, he

asserts vague, speculatory, and conclusory allegations against the

DOC or unnamed “COs,” which are presumably corrections officers.

¶ 36 For example, Johnson alleges the following in his complaint:

 “DOC continues to place [Johnson] around enemies and

enemies in attempts to attack, placing [Johnson’s] life in

imminent danger, refusing [Johnson] [use] of [a]

wheelchair and other disability aids due to [Johnson’s]

disability.”

 Johnson has a “fear of inmate assault, which has been

created by multiple DOC staff.”

7 His complaint implies that McGrath works for the DOC in a

supervisory position, but he does not say this, say what her role is,
or say who she supervises or how she is connected to his imminent
danger.

20
 DOC staff are “[n]ot allowing medical or dental treatment

and refusing to bring him to medical treatment stating

that he has to walk when [Johnson] has a well-known

conversion disorder.”

 DOC, in retaliation, is “attempting to try to kill

[Johnson].”

 “[Johnson] has not been able to shower since 2019 . . . .

Staff have stated that [Johnson] has no records of

wheelchair orders, when [Johnson] does[,] retaliation

against him forcing [Johnson] to scoot and crawl on the

floor since 2019.”

 “[Johnson], family, friends, lawyers, and Judges, have

numerous items of evidence proving an unsafe

environment, yet the Colorado courts do nothing but aid

the conspiracy to kill Mr. Johnson because of his

litigation.”

¶ 37 Johnson’s allegations vaguely allege a fear of assault, refusal

of medical treatment, and a deprivation of a wheelchair. These

vague and conclusory allegations do not constitute specific

allegations of fact that would justify invoking the imminent danger

21
exception. While Johnson expresses that he feels unsafe in the

prison environment, general assertions of fear of assault do not

support claims of imminent danger. White, 157 F.3d at 1231.

Instead, a defendant must provide “specific fact allegations of

ongoing serious physical injury, or of a pattern of misconduct

evidencing the likelihood of imminent serious physical injury.”

Fuller, 288 F. App’x at 511 (quoting Martin v. Shelton, 319 F.3d

1048, 1050 (8th Cir. 2003)). Johnson does not do so in this case.

¶ 38 Further, while refusing medical care may constitute an

imminent threat to physical well-being under some circumstances,

a defendant should specify who has denied him treatment, for what,

and on what occasion. See Hafed, 635 F.3d at 1180. Johnson’s

assertions are not specific, do not identify individuals, do not say

when he was denied treatment, and are vague and conclusory.

Thus, these allegations fail to demonstrate the first factor necessary

to meet the imminent danger exception.

¶ 39 However, unlike the allegations noted above, Johnson does

make one allegation that generally sets forth an action taken by

McGrath:

22
Merideth McGrath has full knowledge of the
safety disability issues as she has been
provided adequate documents of the COs and
inmates along with paper forms proving such,
yet she allows staff members at the [S]terling
correctional facility to aid inmates in opening
their door to allow them to come out of their
cells so that the COs could open door only to
[have] him assaulted because he is not afraid
to litigate AND WILL NEVER STOP.”

¶ 40 Construed broadly, this claim alleges that McGrath has

allowed her subordinates to help other inmates assault Johnson.

Assuming what Johnson says is true, this claim still fails to

demonstrate imminent danger of serious physical injury because it

does not make specific allegations. It is impossible to tell from the

complaint whether corrections officers are releasing other inmates

from their cells in the normal course of the day, or whether

Johnson alleges that those officers are creating a situation that

specifically targets Johnson. Nor does it specifically identify how

McGrath is involved, other than the vague allegation that she may

“allow” her staff to be involved.

¶ 41 We thus conclude that Johnson’s allegations of serious

physical injury are not sufficiently specific.

23
B. Remaining Factors

¶ 42 Johnson’s claims fail under the remaining two factors as well.

The assault allegation relates to past conduct. It is not ongoing or

about to occur. Johnson uses a mix of past and present tense, but

even construing his pleading as broadly as possible, he does not

make sufficient factual allegations showing that McGrath — or even

the unnamed corrections officers — are currently or about to open

his cell doors to have him assaulted by the other inmates. We

therefore conclude that Johnson has not alleged that the assault is

imminent.8

¶ 43 Likewise, Johnson’s complaint fails to meet factor three

because there is no nexus between his claims and his factual

allegations of serious physical injury. Johnson makes three claims

for relief: (1) $20,000,000 in punitive and compensatory damages

under “federal 1983 relief”; (2) $350,000 in punitive and

compensatory damages under state law; and (3) relief under an

8 We note that Johnson appears to satisfy the second factor through

his allegation that he has been deprived of a wheelchair. However,
this claim fails on the other two elements and, therefore, does not
entitle him to relief.

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“interstate compact” because of retaliation and not receiving

medical treatment and accommodations.9 Due to their

retrospective nature, they would not redress an imminent danger of

serious physical injury.10 There is no nexus between these claims

and Johnson’s allegation of assault.

¶ 44 In sum, Johnson’s claims do not satisfy the requirements of

section 13-17.5-102.7(2) because they fail to (1) specifically allege

serious physical injury; (2) allege imminent danger (with the

possible exception of his wheelchair claim); and (3) establish a

nexus between his claims for relief and his allegations of imminent

danger of serious physical injury. All three factors must be met for

an inmate’s claims to qualify for the exception in section

13-17.5-102.7(2). Therefore, we conclude that Johnson’s complaint

fails to allege sufficient facts entitling him to application of the

imminent danger exception to the three strikes rule under section

9 The first two claims are explicitly for compensatory and punitive

monetary damages and are directed toward redressing past actions.
Johnson doesn’t describe this last item in sufficient detail for us to
understand which interstate compact he seeks relief under.

10 While money damages could conceivably redress an ongoing

imminent danger, Johnson did not allege such facts in this case.

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13-17.5-102.7(2). It follows that the district court did not err by

denying Johnson’s motion to proceed IFP.

VI. Disposition

¶ 45 The judgment is affirmed.

JUDGE J. JONES and JUDGE DUNN concur.

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