[00:00:01] Speaker 01:
Case number 22-5251.

[00:00:05] Speaker 01:
Michael S. Alfeather-Gorby, AKA Tsunami-Khan, appellant, versus Avery Captain USP Thompson et al.

[00:00:12] Speaker 01:
Ms.

[00:00:12] Speaker 01:
Geba Amicus-Currier for the appellant, Mr. Dreier for the appellees.

[00:00:19] Speaker 02:
Good morning.

[00:00:22] Speaker 02:
Good morning, Your Honor.

[00:00:23] Speaker 02:
Erica Hashimoto from Georgetown University.

[00:00:26] Speaker 02:
Appellate Litigation Clinic.

[00:00:27] Speaker 02:
With the court's permission, third-year law student Sonia Geba will be presenting the argument on behalf of Amicus.

[00:00:35] Speaker 06:
Thank you.

[00:00:38] Speaker 06:
Ms.

[00:00:38] Speaker 06:
Geba.

[00:00:42] Speaker 05:
Good morning, Your Honors, and may it please the court.

[00:00:46] Speaker 05:
This court did not strain its reading of imminent danger in this case.

[00:00:51] Speaker 05:
Even the government agrees that Mr. Khan's acquired blindness from worsening glaucoma poses a danger of serious physical injury.

[00:00:58] Speaker 05:
Indeed, Mr. Khan's advanced and complicated condition has already caused him to lose over 95% of his vision in one eye and over 65% in the other due to delayed and denied medical care.

[00:01:15] Speaker 05:
He faces complete, irretrievable loss of the vision that he has left

[00:01:19] Speaker 05:
And while he faces total blindness, he also alleges an ongoing pattern of brutal physical assaults in retaliation for his complaints.

[00:01:28] Speaker 05:
In total, his filings detail at least six specific assaults plus two more threats of serious harm by four individuals over a four-month period at USP Thompson.

[00:01:41] Speaker 05:
Mr. Khan has already met the high standard this court has established for imminent danger claims.

[00:01:47] Speaker 05:
He has alleged sufficient specific factual allegations of serious imminent dangers.

[00:01:53] Speaker 05:
The PLRA's 1915A screening device also encourages district courts to dismiss frivolous claims before a case is even docketed.

[00:02:03] Speaker 05:
Further, the PLRA's legal constraints that already narrow the imminent danger exception, assessing the seriousness, imminence, specificity, and nexus of allegations

[00:02:15] Speaker 05:
precisely at the time of complaint and notice of appeal are more than enough to safeguard this court from meritless suits.

[00:02:25] Speaker 04:
Can I clarify something?

[00:02:28] Speaker 04:
Yes.

[00:02:28] Speaker 04:
I mean, if the lawsuit is not seeking relief from physical assaults, it's not raising

[00:02:39] Speaker 04:
you know, some sort of Eighth Amendment or other claims relating to the assaults and seeking to get some sort of relief from the assaults.

[00:02:50] Speaker 04:
Why are they relevant to whether he can bring a lawsuit related to treatment for glaucoma?

[00:03:04] Speaker 04:
I mean, isn't the purpose of the imminent danger

[00:03:07] Speaker 04:
language to allow somebody to who is in imminent danger to file a lawsuit, notwithstanding the fact that they filed prior three prior frivolous lawsuits, but to file a lawsuit to stop this imminent danger or risk of entry that that they're facing.

[00:03:32] Speaker 05:
So Mr. Khan has

[00:03:38] Speaker 05:
sought damages in this case, and that is sufficient.

[00:03:43] Speaker 05:
Under previous cases, that is a sufficient relief that he could seek for both the assaults and the glaucoma.

[00:03:52] Speaker 04:
But I didn't read his complaint as raising any claims relating to the assaults.

[00:03:57] Speaker 04:
Did I miss that?

[00:03:59] Speaker 05:
I believe he did.

[00:04:00] Speaker 05:
I might need to check the JA

[00:04:07] Speaker 05:
and address on rebuttal.

[00:04:09] Speaker 05:
But in his complaint and in the IFP application, I believe he, I mean, throughout his complaint, he brings claims of physical assaults against several different inmates with which he was housed and complaints against staff who refused to,

[00:04:36] Speaker 05:
to take his grievances.

[00:04:39] Speaker 05:
So his claims entirely have to do with assault allegations.

[00:04:45] Speaker 05:
Okay.

[00:04:51] Speaker 05:
Mr. Khan has sufficiently pled not just one imminent danger, but two.

[00:04:55] Speaker 05:
So as we've mentioned first, he

[00:05:00] Speaker 05:
alleges delayed and denied medical care medications for his glaucoma and access to an ophthalmologist, which is causing impending blindness.

[00:05:09] Speaker 05:
This is sufficiently serious under the PLRA's imminent danger exception because it is life altering and disabling.

[00:05:15] Speaker 05:
He's already lost 95% of his vision in one eye.

[00:05:19] Speaker 05:
And he alleges a snuff-out syndrome which his doctors have treated him with or rather addressed in his medical records that creates a massive risk of complete blindness.

[00:05:34] Speaker 05:
This is also sufficiently imminent under this court's precedence in Ibrahim, for example, chronic illnesses were recognized as inherently imminent and ongoing.

[00:05:43] Speaker 05:
So this is also imminent.

[00:05:46] Speaker 05:
his glaucoma-related harms.

[00:05:49] Speaker 06:
It doesn't appear to be much of a dispute about that for our purposes here.

[00:05:54] Speaker 06:
I guess the question I have is, let's suppose, I know that you have an argument that we shouldn't take account of additional evidence that's submitted by the government in response to our request to respond.

[00:06:07] Speaker 06:
But you also have an argument that says that even if we did, the imminent danger threshold is still satisfied.

[00:06:13] Speaker 06:
And so let's just focus on that part of the argument.

[00:06:16] Speaker 06:
Sure.

[00:06:16] Speaker 06:
What in your mind should we do with the notion that the government points out about his declining surgery?

[00:06:29] Speaker 05:
Well, we point out in our brief in response to that question that as recently as late 2020, he actually underwent surgery, which was unsuccessful.

[00:06:39] Speaker 05:
So the doctors that he's been consulting with in the past before February of 2021, which was the last time that he

[00:06:46] Speaker 05:
saw an ophthalmologist.

[00:06:49] Speaker 05:
He's been able to consult with an ophthalmologist to take surgery or not.

[00:06:57] Speaker 05:
That's kind of within the scope of the patient-doctor relationship.

[00:07:02] Speaker 05:
And so the surgery question is

[00:07:09] Speaker 05:
I think, slightly separate than the core of his allegations, which are that he's being delayed his treatments between five and 20 days of medication at a time, which another provider told him that he shouldn't be receiving, or he should be receiving his medications consistently daily.

[00:07:26] Speaker 05:
He should not go any period of time without his medications.

[00:07:29] Speaker 05:
And this is also a really complicated case.

[00:07:34] Speaker 05:
His glaucoma condition is quite advanced and also

[00:07:38] Speaker 05:
complicated by this snuff out syndrome that he mentions in his filings.

[00:07:44] Speaker 05:
It's not clear, even with the doctors that he has consulted, that surgery would be the proper remedy either.

[00:07:54] Speaker 05:
It may actually introduce a danger of total blindness as well.

[00:07:59] Speaker 06:
So I appreciate the point that

[00:08:03] Speaker 06:
It's a complicated situation medically, and we shouldn't be in the position of trying to step into the shoes of a physician to figure out exactly what the right course of treatment is.

[00:08:11] Speaker 06:
But as a more abstract matter, what should we do with situations in which there's something in the record that indicates that an inmate who's complaining about an imminent danger is declining to extricate himself from the dangerous situation, even though something, let's just say, has been offered to him?

[00:08:32] Speaker 06:
But he still says he's in imminent danger.

[00:08:33] Speaker 06:
But it's apparent from the record that there's a serious question about whether it's his own conduct that's leading him to stay in a dangerous situation.

[00:08:41] Speaker 06:
And he has a self-help remedy that he's just been declining.

[00:08:46] Speaker 05:
I think with regard to, I mean, surgery we've already talked about.

[00:08:52] Speaker 06:
Yeah, let's put that one too aside, but just as a general matter.

[00:08:55] Speaker 06:
Suppose you have, for example,

[00:08:56] Speaker 06:
transfer in the assault circumstance was he had a transfer situation and the inmate just refuses to to take a transfer says he wants to stay in his cell and the other person to be transferred who's been assaulting him.

[00:09:10] Speaker 06:
How would we how would we deal with a situation like that?

[00:09:17] Speaker 05:
I think this court has certain tools to screen out different

[00:09:24] Speaker 05:
kinds of claims.

[00:09:25] Speaker 05:
So this court could use some of those tools in that scenario.

[00:09:29] Speaker 05:
For example, the court could weigh the specific facts in that scenario and consider whether it's conclusory or ridiculous kind of statement.

[00:09:42] Speaker 05:
It could also consider that

[00:09:53] Speaker 05:
Maybe the harm is not specific enough in that situation.

[00:10:02] Speaker 05:
Because under this court's precedent, it's also in Mitchell, a harm needs to be specific enough.

[00:10:09] Speaker 05:
A plaintiff needs to allege specific facts, things like dates, people who have committed the harms.

[00:10:20] Speaker 05:
and other details for the court to conclude that a harm has occurred and that they are seeking relief from that harm.

[00:10:28] Speaker 05:
And so in the case of someone who is not making certain or taking certain actions, I mean, I think in that case also, they could still be seeking relief like damages, which could be like they could still be seeking that.

[00:10:47] Speaker 05:
But I think that this court would have to weigh the facts in that situation and consider whether it's a conclusory or speculative kind of harm.

[00:11:00] Speaker 06:
Thank you.

[00:11:01] Speaker 06:
Let me make sure my colleagues don't have additional questions for you.

[00:11:05] Speaker 06:
We'll give you some time for rebuttal.

[00:11:06] Speaker 06:
Thank you very much.

[00:11:07] Speaker 06:
Thank you, Ms.

[00:11:08] Speaker 06:
Kent.

[00:11:19] Speaker 03:
Good morning, Your Honor.

[00:11:22] Speaker 03:
May it please the court, Douglas Dreier, on behalf of the United States.

[00:11:26] Speaker 03:
I want to start with something everyone agrees with, which is that conclusory, fantastic, delusional, irrational allegations of imminent danger do not satisfy Section 1915-G's exemption.

[00:11:41] Speaker 03:
And I would refer to page five of Mr. Gourby's reply brief or what we just heard at the podium.

[00:11:47] Speaker 03:
But where in the statute's text can we derive that principle from?

[00:11:50] Speaker 03:
It's the statute's text that must control.

[00:11:54] Speaker 03:
And so 1915 G says, unless the prisoner is under imminent danger of serious physical injury, it is the is that is doing the work there.

[00:12:03] Speaker 03:
When a prisoner brings irrational or delusional allegations, courts can determine that the prisoner is not under imminent danger.

[00:12:11] Speaker 03:
even if he alleges that he is.

[00:12:13] Speaker 03:
But that demonstrates that the question for the court is whether the prisoner is in imminent danger, not merely whether he states that he is.

[00:12:21] Speaker 03:
Happy to answer any questions the court may have.

[00:12:24] Speaker 06:
So the idea that we don't take account of delusional allegations, would that deal with the witches hypothetical that you have in your briefs?

[00:12:32] Speaker 03:
It would.

[00:12:32] Speaker 03:
And I would also want to point out there's... So there's another tool to deal with that.

[00:12:37] Speaker 03:
There is, but where does that tool come from?

[00:12:40] Speaker 03:
That's not plucked out of the ether.

[00:12:42] Speaker 03:
It has to come from the statute's text.

[00:12:44] Speaker 03:
And I think that is in the statute's text where it says is an imminent danger.

[00:12:48] Speaker 03:
And I'd also point to if page 24 of the Joint Appendix, his IFP motion, states that Mr. Gorby also owns all of the United States, Mongolia, China, Scotland, and Egypt.

[00:13:02] Speaker 03:
So this is already

[00:13:05] Speaker 03:
plaintiff who we know is making fanciful allegations.

[00:13:09] Speaker 06:
But if there's fanciful allegations about one thing, but then there's also allegations about imminent danger, do we just, should we discount allegations about imminent danger because of other allegations?

[00:13:18] Speaker 03:
It shows that the court should look closely.

[00:13:21] Speaker 03:
And so I agree in the vast, ordinary run of cases, the court will look at the complaint, look at the IFP motion, or look at the notice of appeal, depending on what stage we're in.

[00:13:31] Speaker 03:
will accept the prisoner's well-planned allegations as true and go from there.

[00:13:35] Speaker 03:
But in cases like this one, where we're dealing with a prisoner who's filed more than 400 cases and whose own application demonstrates fanciful delusional allegations, let's point out the whole point of this complaint, to go back to Judge Wilkins' question, is that he believes that there is a conspiracy between all members of the Senate Judiciary Committee, the head of the Administrative Office of US Courts, and various Northern District of Illinois judges

[00:14:01] Speaker 03:
to conspire against him to interpret section 1915 G too narrowly.

[00:14:07] Speaker 03:
So it's not just single lines that I can point to.

[00:14:10] Speaker 03:
It is the complaint as a whole.

[00:14:13] Speaker 06:
So if the complaint as a whole has some fanciful stuff in it and surrounding it, then let's suppose that it wasn't that case, but he still has all the same things about glaucoma and inmate assaults.

[00:14:27] Speaker 06:
Would that would such a complaint that didn't have the fanciful stuff that you're identifying with that get past the imminent danger bar.

[00:14:34] Speaker 03:
Well, so first, I'd have to be in excess.

[00:14:36] Speaker 03:
But assuming there is an excess, then I think as if that is the well-planned allegations, that may be enough to get IFP status.

[00:14:46] Speaker 03:
But if there is evidence in the record that contradicts that,

[00:14:50] Speaker 03:
such as the Moisson declaration or prior judicial opinion saying that it was Mr. Gorby's own decision to refuse surgery that caused him to get into the situation he did with his glaucoma.

[00:15:02] Speaker 03:
The court can consider that.

[00:15:03] Speaker 03:
And that, even if the court wasn't aware initially, that can be reason to revoke IFP status.

[00:15:11] Speaker 03:
Now, one thing I want to point out is this court has a very narrow strike window for what counts as a strike under 1915 G.

[00:15:19] Speaker 03:
And it does for good reason.

[00:15:21] Speaker 03:
It's because 1915-G is supposed to have consequences.

[00:15:24] Speaker 03:
And it shouldn't be so easily trounced by a prisoner who can just add allegations of imminent danger that are completely contradicted by the facts.

[00:15:36] Speaker 06:
If there's a nexus requirement, which our decisions establish,

[00:15:42] Speaker 06:
then the IFP allegations are going to be related to the merits.

[00:15:50] Speaker 03:
At minimum.

[00:15:51] Speaker 03:
And I'd say it's more than relate to, but yes, Your Honor.

[00:15:55] Speaker 06:
So they're at least bound up with the merits.

[00:15:57] Speaker 06:
So those cases, if they're that fanciful, will go off on the merits anyway, right?

[00:16:02] Speaker 03:
So, I mean, this is where I want to push back at the notion that the government's position is somehow worse for prisoners.

[00:16:09] Speaker 03:
What we hear is this desire to, oh, well, this case can be disposed of other ways.

[00:16:15] Speaker 03:
Mr. Gorby has filed approximately 400 cases.

[00:16:18] Speaker 03:
Let's assume for easy math, and I know it's actually much more to file an appeal here in DC Circuit right now, but let's assume that's $400 per case or appeal.

[00:16:28] Speaker 03:
400 times 400, that's $160,000 that Mr. Gourby could have owed to the courts if he would have been granted IFP status each time.

[00:16:37] Speaker 03:
Now, where I grew up in a small city in what shouldn't be called the rest belt, that's enough for a person to buy a nice house for their family.

[00:16:44] Speaker 03:
So just believing that,

[00:16:47] Speaker 03:
Oh, the court can dispose of this the other way.

[00:16:49] Speaker 03:
It's not better for the prisoner, and it's also not what's called for in the tax.

[00:16:53] Speaker 03:
The tax to 1915 G is the prisoner in imminent danger.

[00:16:57] Speaker 03:
And I think Judge Richardson's concurrence in the Hall opinion from the Fourth Circuit the other year, while certainly said some things that I would disagree with, I think it does have a good point, which is,

[00:17:09] Speaker 03:
Unless the prisoner is in imminent danger, then 1915 G doesn't apply.

[00:17:14] Speaker 06:
He rejected the redressability idea that you put forward, right?

[00:17:16] Speaker 03:
He rejected the entire nexus idea, including Pinson.

[00:17:19] Speaker 03:
Because he didn't see it in the text of the statute.

[00:17:21] Speaker 03:
Correct.

[00:17:23] Speaker 03:
And on that point, I mean, Pinson did settle this in this circuit.

[00:17:26] Speaker 03:
But what I would say is Congress had a clear intention with the PLRA, which was to ease the constitutional concern by allowing a prisoner who really was under imminent danger of serious physical injury

[00:17:39] Speaker 03:
to get into the courthouse.

[00:17:42] Speaker 03:
And so that demonstrates the nexus.

[00:17:44] Speaker 03:
And I think you have to read the two parts of the statute together with Congress's purpose in mind to see why the nexus requirement does exist.

[00:17:54] Speaker 03:
But that was settled in Pinson.

[00:17:55] Speaker 04:
What about his allegations of the beatings by other inmates and the guards spreading rumors and all of that?

[00:18:08] Speaker 04:
What rebuttal did you present with respect to those factual allegations?

[00:18:14] Speaker 03:
Sure.

[00:18:15] Speaker 03:
One, at the time he noticed the appeal, he was not in a cell with either of the prisoners at question, Qualsic or Riggs.

[00:18:25] Speaker 03:
So there was no fear of imminent danger at the time he noticed the appeal.

[00:18:30] Speaker 03:
Two, I'd point out to the Moisson Declaration, which goes through the

[00:18:36] Speaker 03:
The only assault that's really described with specificity as to what happened, I believe it says he was hit with a closed fist, which sounds quite bad.

[00:18:45] Speaker 03:
But when we look at what actually happened when the doctors analyzed him, they saw no fractures, no damage to the soft tissue.

[00:18:54] Speaker 03:
And this is just another example of Mr. Gorby tending to make allegations that once they're looked at, just don't hold water.

[00:19:10] Speaker 04:
So I'm trying to understand how your legal test would work.

[00:19:18] Speaker 04:
So let's suppose we have a hypothetical where the inmate files frivolous claim after frivolous claim, hundreds of them, and the prison officials

[00:19:41] Speaker 04:
Um, according to the complaint and declarations by by the inmate say that basically we're going to punish you for continuing to harass all of us with your frivolous lawsuits.

[00:19:57] Speaker 04:
And and and the lawsuits continue to be frivolous and fanciful and all of that.

[00:20:06] Speaker 04:
But the

[00:20:07] Speaker 04:
allegations which don't get rebutted by the government or that he gets a beating after every single one that he files.

[00:20:17] Speaker 04:
And he puts that in his, you know, request for IFP status.

[00:20:26] Speaker 04:
What do we do with that case where

[00:20:35] Speaker 04:
where there's no rebuttal that he's being beaten, but yet the case itself, you could say that there's no nexus between the beatings and the allegations in the complaint, because the allegations in the complaint are, I want medical marijuana for my glaucoma.

[00:20:56] Speaker 03:
Yeah, then we would be in the same situation that led to Pinson, which was a Gorby case as well.

[00:21:02] Speaker 03:
And where the court says, look, there is no nexus.

[00:21:07] Speaker 03:
And in Pinson, the court said there wasn't even a minimal nexus.

[00:21:10] Speaker 03:
It didn't matter what the particular test was for nexus, whatever it was, Mr. Gorby failed to satisfy it.

[00:21:15] Speaker 03:
So I think

[00:21:16] Speaker 03:
the going the nexus route, which this court has done time and time again.

[00:21:21] Speaker 03:
I mean, Mr. Corby filed, I think, approximately nine appeals in this court in 2022 alone.

[00:21:28] Speaker 03:
Repeatedly, the court dealt with Mr. Corby's allegations by just saying,

[00:21:32] Speaker 03:
look there's there's no nexus here and so denying ifp status now here the court invited the united states's position so we provided a declaration that sets forth so so let's suppose we have someone who's filed multiple frivolous complaints prior but their current complaint is

[00:21:52] Speaker 04:
You know for religious reasons that are sincerely held I Don't eat pork But the only food that they are serving to me is pork And I basically have to eat it or I'll starve And so I'm being compelled to eat pork against my religious beliefs I'm not in imminent

[00:22:19] Speaker 04:
danger in that, like, I'm not being beaten.

[00:22:23] Speaker 04:
I'm not going to starve, but I am.

[00:22:28] Speaker 04:
My constitutional rights, my First Amendment rights are being violated there.

[00:22:35] Speaker 04:
You would say 1915 G doesn't apply, right?

[00:22:41] Speaker 03:
I mean, I think then the question is, assuming there is a nexus there to the claims, then the question is, does that qualify as a serious physical injury?

[00:22:52] Speaker 03:
If the court were to assume it did on the constitutional question, then I think to the extent the court were to grant it, if it was then discovered that these contradictions are just untrue, then IFP status could be revoked once presented with contradicting evidence.

[00:23:12] Speaker 03:
Now, and I also want to point out the benefit to the prisoner in having IFP status revoked in that situation.

[00:23:18] Speaker 03:
if the case was going to be dismissed anyway, which is once IFP status is revoked, they're not going to be on the hook for paying the rest of the filing fee.

[00:23:26] Speaker 03:
So it is better for the prisoner, if a case is going to be dismissed anyway, to have IFP status revoked first.

[00:23:33] Speaker 06:
Yeah, we identify that even in our Ossimani decision that highlighted for the inmate what the possibility would be if he chose to go forward.

[00:23:40] Speaker 06:
Exactly, Your Honor.

[00:23:41] Speaker 06:
For this reason.

[00:23:42] Speaker 06:
To follow up on Judge Wilkins' hypothetical, unless you have

[00:23:45] Speaker 06:
in the situation in which the allegation has to do, for imminent danger purposes, has to do with ongoing beatings in the cell, and then the merits of the suit also deal with that.

[00:23:58] Speaker 06:
Even if this is somebody who is a serial frivolous filer, 400 complaints, let's say, but if those allegations are in the complaint, and they're, at least with respect to the beatings, they're not rebutted,

[00:24:12] Speaker 06:
by a response that's solicited from the government, then under your approach, there would be a nexus and IFP status would be granted.

[00:24:25] Speaker 03:
I think it would need to demonstrate that there is an imminent danger that the beatings would recur.

[00:24:33] Speaker 03:
I think in Osmani in particular, there's a reference that, look, if the pattern gets broken,

[00:24:38] Speaker 03:
If there's some reason, say, he has been transferred away from the cellmates in question, as happened here, then there would be no reason to believe it would recur.

[00:24:48] Speaker 03:
And so it wouldn't be an imminent danger at the moment.

[00:24:50] Speaker 06:
But if the transfer happens after, I thought that we're supposed to be looking at the nature of the allegations at the time of the notice of appeal?

[00:24:59] Speaker 06:
We are at this point, yes.

[00:25:01] Speaker 06:
And so at the time of the notice of appeal, there hasn't been a transfer yet.

[00:25:05] Speaker 06:
And it was on a fast track in the district court.

[00:25:07] Speaker 06:
It comes up quickly, and the person is still at least in the same facility.

[00:25:10] Speaker 06:
Or at least there's no reason to think that he's not.

[00:25:12] Speaker 06:
Because I think a lot of these situations, there may be no particular reason that the court would know who's supposed to be doing this filtering at an outset.

[00:25:21] Speaker 06:
At that point, then, there would be a nexus, hypothetically, and the allegations would go to imminent danger.

[00:25:27] Speaker 06:
And then IFP status would be granted.

[00:25:31] Speaker 03:
I would need to see that in the full context, but in general, I think that is probably correct.

[00:25:39] Speaker 03:
And again, just IFP status could be revoked if it was determined that indeed the prisoner wasn't in imminent danger.

[00:25:46] Speaker 03:
OK.

[00:25:48] Speaker 06:
Make sure my colleagues have any questions.

[00:25:51] Speaker 06:
Thank you, Mr. Dreier.

[00:25:52] Speaker 06:
Thank you, Aaron.

[00:26:01] Speaker 06:
This guy will give you two minutes for a bottle.

[00:26:03] Speaker 05:
Thank you.

[00:26:05] Speaker 05:
Your honors, I'd like to conclude with three short points.

[00:26:09] Speaker 05:
Um, first, I think we've, uh, it's been mentioned, but the pillar, it makes no distinction between a person, a plaintiff with four or 400 rebellious claims.

[00:26:21] Speaker 05:
Mr. Khan still has to pay the filing fee only in installments.

[00:26:26] Speaker 05:
So he has no interest in bringing an insufficient or conclusory claim here, only to be kicked out at the merit stage when he would still have to pay the filing fee.

[00:26:39] Speaker 05:
Second, this case is not conclusory.

[00:26:42] Speaker 05:
Mr. Khan's allegations are not conclusory.

[00:26:45] Speaker 05:
This court has an obligation to construe his allegations liberally.

[00:26:51] Speaker 05:
And even under that, even without that construction, I don't think that this court could come to any other determination on the assaults for the notice of appeal, the timing of the assaults for the notice of appeal.

[00:27:05] Speaker 05:
Mr. Khan alleges that he was assaulted on August 28th, two days before his notice of appeal by Mr. Riggs after he was placed in a cell with Mr. Riggs a second time after he had already been assaulted by Mr. Riggs previously.

[00:27:20] Speaker 05:
Third, the government has been discussing its affidavit.

[00:27:26] Speaker 05:
No matter what the government presents as rebuttal evidence, even if it was incontrovertible or appeared incontrovertible to this court, if he said that he wasn't even at USP Thompson, that would still be a factual dispute that this court would have to

[00:27:44] Speaker 05:
Weigh the credibility of a versus Mister cons allegations and that is a factual dispute that should be resolved that can that this court is not equipped to to resolve proper forum to resolve.

[00:27:59] Speaker 05:
I see I'm almost out of time and I would just conclude on the final point that nexus is not a problem here.

[00:28:04] Speaker 05:
Mr. Khan, under any articulation of the standard, satisfies nexus.

[00:28:11] Speaker 05:
His underlying legal claims are exactly the same as his imminent danger claims.

[00:28:15] Speaker 05:
There is a clearly traceable connection.

[00:28:17] Speaker 05:
And even under any other tests that other circuits have adopted, he passes.

[00:28:27] Speaker 06:
Thank you, Miss Gabba.

[00:28:28] Speaker 06:
Thank you, Mr. Barr.

[00:28:30] Speaker 06:
You and your team are appointed by the court to present arguments supporting appellant in this matter, and the court thanks you for your assistance.

[00:28:37] Speaker 06:
We'll take this case under submission.