October 4, 2017
from the United States District Court for the Central
District of Illinois. No. 16-cv-1366-JBM - Joe Billy McDade,
Bauer, Easterbrook, and Manion, Circuit Judges.
EASTERBROOK, CIRCUIT JUDGE.
Sanders has been in solitary confinement at Pontiac
Correctional Center for eight years, and the prison plans to
keep him there for another ten. He has been diagnosed with
intermittent explosive disorder, schizoaffective disorder,
and other conditions that make him dangerous to others when
allowed greater liberty. But Sanders alleges in this suit
under 42 U.S.C. §1983 that, although his confinement may
protect guards and other prisoners, the isolation, heat, and
restricted air flow in solitary confinement harm him by
aggravating both his psychological problems and his asthma.
He contends that the conditions of his confinement-if not the
fact of long-term solitary confinement under any
conditions-violate the Constitution.
filing fee for initiating litigation in federal court is
$400. Contending that he does not have this much money,
Sanders asked for permission to litigate in forma
pauperis, a status that for a prisoner means payment
over time rather than in advance. See 28 U.S.C.
§1915(b). But there is an exception:
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.
28 U.S.C. §1915(g). Judges refer to this as the
three-strikes rule. See Bruce v. Samuels, 136 S.Ct.
627 (2016). Sanders concedes that at least three of his prior
suits or appeals have been dismissed as frivolous, malicious,
or failing to state a claim. The district court held that he
therefore must pay $400 to pursue the current suit. 2017 U.S.
Dist. Lexis 41026 (C.D. Ill. Mar. 22, 2017). He did not pay,
the suit was dismissed, and he appeals from that final
maintains that asthma and a deteriorating mental state
satisfy the exception to the exception: a "prisoner
… under imminent danger of serious physical
injury" may litigate in forma pauperis no
matter how many strikes he has. Mental deterioration,
however, is a psychological rather than a physical problem.
Physical problems can cause psychological ones, and the
reverse, but the statute supposes that it is possible to
distinguish them. A claim of long-term psychological
deterioration is on the psychological side of the line.
Prisoners facing long-term psychological problems can save up
during that long term and pay the filing fee.
contention that heat and restricted ventilation aggravate his
asthma alleges a risk of physical injury, but not an
"imminent" one-and a "struggle to
breathe", which Sanders alleges, is a normal incident of
asthma rather than a "serious" incremental harm.
Many risks, for many people (including asthmatics), never
come to pass or turn out not to be serious; Sanders has not
offered any reason to think that serious physical injury from
asthma is "imminent". If fears about the future
made for an "imminent danger of serious physical
injury", the statute would not serve to curtail
litigation by those who have demonstrated a propensity to
make baseless or malicious claims. Observations about the
general dangers of prison life therefore do not suffice. Cf.
Gevas v. McLaughlin, 798 F.3d 475, 480-81 (7th Cir.
Sanders advances a stronger contention: that his mental
condition (the prison itself classifies Sanders as
"seriously mentally ill") disposes him to
self-harm. He asserts that he has twice tried to commit
suicide and at least once engaged in self-mutilation.
According to his complaint, the mental-health staff at
Pontiac ignores the problems of inmates in solitary
confinement unless they engage in self-harm. Cutting off an
ear or other self-mutilation is a form of physical injury;
that the would-be plaintiff inflicts the injury himself, and
does so because of mental problems, does not make the harm
less "physical" or less "serious." See
Rasho v. Elyea, 856 F.3d 469, 477-78 (7th Cir.
2017). That Sanders has attempted self-harm multiple times
lends support to his allegation that a future attempt is
"imminent" unless he is released from solitary or
allowed mental-health care. Courts don't accept
allegations of danger uncritically. Taylor v.
Wat-kins, 623 F.3d 483, 485 (7th Cir. 2010);
Ciarpaglini v. Saini, 352 F.3d 328, 330-31 (7th Cir.
2003). But Sanders's history, coupled with the
prison's diagnosis of his condition, makes his
allegations plausible. And plausibility is enough in a
pleading. Bell Atlantic Corp. v. Twombly, 550 U.S.
the district court dismissed the allegations out of hand,
stating they are "self-serving." Which they are.
Everything a litigant says in support of a claim is
self-serving, whether the statement comes in a complaint, an
affidavit, a deposition, or a trial. Yet self-serving
statements are not necessarily false; they may be put to the
test before being accepted, but they cannot be ignored. Our
opinion in Hill v. Tangherlini, 724 F.3d 965 (7th
Cir. 2013), recounts the circuit's flirtation with a
doctrine that allows judges to disregard self-serving
statements, and it overrules any precedents that so much as
hinted in that direction. It is dismaying to see plausible
allegations labeled "self-serving" and then swept
aside after Hill and its predecessors such as
Payne v. Pauley, 337 F.3d 767 (7th Cir. 2003).
called Sanders's allegations self-serving, the district
court added that they amount to a threat to engage in
volitional harm. How much control over his actions a mentally
ill person such as Sanders possesses may be a difficult
medical, philosophical, or religious question that is not
suited to summary resolution, but we assume for current
purposes that he exercises at least some. That assumption
does not support the district court's decision, however.
court assumed that volitional harm cannot be "imminent
danger of serious physical injury." Suppose a prisoner
who has three or more strikes files a new suit protesting the
absence of a tennis court and adds: "If you do not allow
me to proceed in forma pauperis, I will prick my
finger the very day you issue your decision; and as that
would be imminent physical injury, you must allow me to
proceed without prepaying the $400 fee." ...