                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 05-7048



KEVIN JOHNSON,

                                            Plaintiff - Appellant,

          versus


MARK WARNER, Governor; RONALD J. ANGELONE;
GENE JOHNSON; T. C. BROWN; INSPECTOR GENERAL;
TRACY RAY; DANIEL BRAXTON, Warden; JERRY
ARMENTROUT; V. PHIPPS; TERIE PHIPPS; STILTNER;
RICHARD ROWLETTE; RICHARD FLEMING; J. KISER;
DEWAYNE   TURNER;    RONALD   FOWLER;   SMIDDY
HARRISON; KEVIN MCCOY; LARRY COX; J. ROBINSON;
RICHARD ROSE; J. HILLYER; DANNY DAMRON; SCOTTY
DEEL; GREGORY CHILDRESS; TRAVIS MCCOY; DELMER
TATE; JOHN WOOD; DANIEL MCGOWAN; M. FLEMING;
RANDALL CANTRELL; LARRY COLLINS; G. MULLINS;
D. TILLER; S. WHITE; S. SYKES; E. FLEMING;
JOSEPH RASNICK; KEITH COUNTS; JAMES BENTLEY;
J. ELY; SHANNON LONG; FRANKLIN; ROCKY WOOD; D.
MOONEY; J. STANLEY; PHILLIPS; S. BOYD; JOE
FANNIN; J. SMITH; T. AUSTIN; RANDY PHIPPS;
RANDY BOYD; STANLEY YOUNG; ADAM HARVEY; T.
YATES; CAPTAIN JANEWAY; DAVID TAYLOR; MICHAEL
HUTCHINSON; JAMES R. WIANDT; JOE BENTLEY;
JEFFREY HEAD; A. GALLIMAR; LIEUTENANT MEYER;
MATTHEW HAMILTON; JEFF COMPTON; COLLINS;
EWING; SWORD; G. SEXTON; KEVIN YOUNG; GILLEY;
VORP; J. HURLEY; B. STURGILL; RUSTY GOINS;
HUGHES; G. BAILEY; I. HAMILTON,

                                           Defendants - Appellees.



Appeal from the United States District Court for the Western
District of Virginia, at Roanoke.   Jackson L. Kiser, Senior
District Judge. (CA-05-219)
Submitted:   August 23, 2006           Decided:   September 22, 2006


Before WILKINSON and TRAXLER, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Vacated and remanded by unpublished per curiam opinion.


Kevin Johnson, Appellant Pro Se.


Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).




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PER CURIAM:

               Virginia      inmate    Kevin    Johnson    appeals     the    district

court’s       order      dismissing    his    civil   rights    complaint      without

prejudice pursuant to 28 U.S.C. § 1915(g) (2000), upon the finding

that       three    of   Johnson’s    prior    actions    had   been   dismissed    as

frivolous or malicious or for failure to state a claim and that

Johnson had failed to show that he was under imminent danger of

serious physical injury.              Because we find that Johnson alleged

sufficient facts to establish the presence of imminent danger, we

vacate and remand for further proceedings.

               In his detailed complaint, Johnson alleged that prior to

and upon his September 1998 assignment to Virginia’s “supermax”

prisons,* he was threatened by defendants with bodily harm and

death if he persisted in litigation and defending himself from

“abuse.”           As a result, Johnson lives in perpetual fear of being

assaulted, especially because the defendants have periodically made

good on their threats.            Johnson described in detail a number of

alleged assaults by prison guards beginning in 1999.                   The assaults

were       invariably     unprovoked    and    resulted    in   serious      injuries,

including severe cuts, electrocution, and a concussion.                        Johnson

claimed that the most recent assault occurred in February 2005, one

month before he filed his complaint.                     In that assault, guards


       *
      Johnson has been transferred between Wallens Ridge State
Prison and Red Onion State Prison, Virginia’s two supermax
facilities, since 1998.

                                         - 3 -
allegedly took Johnson outside and slammed him face-first into a

wall.   Johnson sustained a variety of injuries, including a broken

front tooth, whiplash, and a deep laceration to his lower lip.

Johnson sought damages as well as declaratory and injunctive

relief.

           The district court dismissed the action without prejudice

pursuant to § 1915(g).     The court took judicial notice of the fact

that Johnson had had at least three civil actions dismissed for

failure to state a claim.        Therefore, Johnson was ineligible to

proceed without prepayment of fees unless he demonstrated that he

was “under imminent danger of serious physical injury.”            28 U.S.C.

§ 1915(g).      The court concluded that Johnson had alleged no facts

from which it could conclude that he was presently under such

danger. Therefore, the district court dismissed the action without

prejudice.

           It was undisputed that Johnson had the requisite three

dismissals required by § 1915(g).         Therefore, the question before

the district court was whether he showed that he was in imminent

danger of serious physical harm either when he filed his complaint

or at some time thereafter.      See Abdul-Akbar v. McKelvie, 239 F.3d

307, 314 (4th Cir. 2001).        “[T]he exception focuses on the risk

that the conduct complained of threatens continuing or future

injury,   not    whether   the   inmate    deserves   a   remedy   for   past

misconduct.”      Martin v. Shelton, 319 F.3d 1048, 1050 (8th Cir.


                                   - 4 -
2003).       Vague,    speculative,         or    conclusory    allegations       are

insufficient to invoke the exception of § 1915(g); rather, the

inmate must make “specific fact allegations of ongoing serious

physical injury, or of a pattern of misconduct evidencing the

likelihood of imminent serious physical injury.”                  Id.

            We find that Johnson’s complaint presented facts that

sufficiently established the existence of an imminent danger of

serious   physical     harm.         He   detailed    unprovoked      assaults    and

resulting    serious    physical          injuries    beginning       in   1999   and

continuing    to   2005.       The    complaint      alleges   that     Johnson   was

threatened with severe bodily injury or death upon his entry into

“supermax,” and that Johnson lives in an atmosphere of constant

fear in which he never knows when the next violent assault may

occur.

            “[T]he determination that [the prisoner] alleged imminent

danger of serious physical injury does not end our inquiry.”

Brown v. Johnson, 387 F.3d 1344, 1351 (11th Cir. 2004).                    Because we

may affirm the district court for any reason based on the record,

the next inquiry is whether the complaint fails to state a claim.

Id.

            We conclude that Johnson’s complaint states a claim under

the Eighth Amendment, which prohibits the infliction of “cruel and

unusual punishments.”      See U.S. Const. amend. VIII.               The Amendment

“not only outlaws excessive sentences but also protects inmates


                                          - 5 -
from   inhumane    treatment    and     conditions    while    imprisoned.”

Williams v. Benjamin, 77 F.3d 756, 761 (4th Cir. 1996); see

Wilson v. Seiter, 501 U.S. 294, 298 (1991).                To succeed on an

Eighth Amendment claim for cruel and unusual punishment, a prisoner

must   establish   the    deprivation    of   a    basic   human   need   was

sufficiently    serious   and   that    prison    officials   acted    with   a

“sufficiently culpable state of mind.”            Wilson, 501 U.S. at 298.

The objective element generally requires more than a de minimis use

of force.      Hudson v. McMillian, 503 U.S. 1, 9-10 (1992).                  De

minimis injury defeats a plaintiff’s excessive force claim “absent

the most extraordinary circumstances.”           Norman v. Taylor, 25 F.3d

1259, 1262-63 (4th Cir. 1994).

            Here, Johnson sufficiently stated a claim of an Eighth

Amendment violation.      The allegedly repeated and unprovoked nature

of the assaults establishes the necessary state of mind.              Further,

both the force used and the injuries claimed to have been sustained

were more than de minimis.

            We accordingly vacate the judgment of the district court

and remand with directions that Johnson be permitted to proceed

without prepayment of fees.       The matter is remanded for further

proceedings.    We dispense with oral argument because the facts and




                                  - 6 -
legal contentions are adequately presented in the materials before

the court and argument would not aid the decisional process.



                                             VACATED AND REMANDED




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