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Acoff v. Howell

United States District Court, N.D. Alabama, Eastern Division

January 9, 2019

MARCO DANE ACOFF, Plaintiff,
v.
BRIAN HOWELL, et al., Defendants.

          MEMORANDUM OPINION AND ORDER

          MADELINE HUGHES HAIKALA UNITED STATES DISTRICT JUDGE.

         Plaintiff Marco Acoff, a pretrial detainee housed in the Calhoun County Jail, filed this action pursuant to 42 U.S.C. § 1983. Mr. Acoff alleges due process violations, false imprisonment, illegal arrest, conspiracy, cruel and unusual punishment, excessive force, and unconstitutional living conditions. (Doc. 1, p. 3). Mr. Acoff seeks compensatory and punitive damages and injunctive relief. (Doc. 1, p. 5). Mr. Acoff filed an application to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. (Doc. 2).

         Consistent with the Prison Litigation Reform Act's screening provision, Chief Magistrate Judge Ott asked Mr. Acoff to show cause why the Court should not dismiss this case pursuant to 28 U.S.C. § 1915(g) under the “three strikes rule” and deny the application to proceed in forma pauperis. (Doc. 3). The PLRA's three strikes rule states:

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). The Eleventh Circuit Court of Appeals has held that a prisoner with a history of three or more meritless cases must pay the full filing fee when filing a new lawsuit. Dupree v. Palmer, 284 F.3d 1234, 1236 (11th Cir. 2002); Vanderberg v. Donaldson, 259 F.3d 1321, 1324 (11th Cir. 2001). Mr. Acoff acknowledges that he has three strikes but contends that the PLRA's imminent danger exception enables him to proceed without first paying the full filing fee. (Doc. 4).

         The Eleventh Circuit Court of Appeals discussed the “imminent danger” exception to the PLRA's three strikes rule at length in Brown v. Johnson, 387 F.3d 1344 (11th Cir. 2004). The Court of Appeals stated:

Section 1915(g), the three strikes provision, bars a prisoner, who has filed three or more complaints that have been dismissed as frivolous or malicious or for failure to state a claim, from filing a complaint in forma pauperis, unless the prisoner is “under imminent danger of serious physical injury.” Brown does not dispute that he has three strikes under section 1915(g). Brown, therefore, may not bring his action in forma pauperis unless he is under imminent danger of serious physical injury.
Although the Second, Third, Fifth, Seventh, Eighth, and Eleventh Circuits have determined that a prisoner must allege a present imminent danger, as opposed to a past danger, to proceed under section 1915(g), Malik v. McGinnis, 293 F.3d 559 (2d Cir.2002); Abdul-Akbar v. McKelvie, 239 F.3d 307 (3d Cir.2001) (en banc ); Baños v. O'Guin, 144 F.3d 883 (5th Cir.1998); Ciarpaglini v. Saini, 352 F.3d 328 (7th Cir.2003); Ashley v. Dilworth, 147 F.3d 715 (8th Cir.1998); and Medberry v. Butler, 185 F.3d 1189 (11th Cir.1999), only the Third, Seventh, and Eighth Circuits have applied the “serious physical injury” portion of the exception. See Gibbs v. Cross, 160 F.3d 962 (3d Cir.1998); Ciarpaglini, 352 F.3d 328; Martin v. Shelton, 319 F.3d 1048 (8th Cir.2003); McAlphin v. Toney, 281 F.3d 709 (8th Cir.2002); Ashley, 147 F.3d 715. In Gibbs, the Third Circuit held that the prisoner's allegations that “unidentified dust particles were in his lungs and mucus, and that he [was] suffering from severe headaches, watery eyes, and a change in his voice as a result” of being placed in a dusty cell were sufficient to meet the imminent danger exception. 160 F.3d at 965. In response to arguments that the allegations of danger were speculative, the court stated that “[i]nmates ought to be able to complain about ‘unsafe, life-threatening condition[s] in their prison' without waiting for something to happen to them.” Id. Likewise, the Seventh Circuit, in Ciarpaglini, held that allegations of “continuing harm as a direct result of being denied ... medication” for bipolar disorder, attention deficit hyperactivity disorder, and panic disorder, were sufficient to meet the imminent danger exception. 352 F.3d at 330. In Ciarpaglini, the prisoner alleged that, as a result of the denial of his medication, his symptoms returned, and that panic attacks caused him to suffer “heart palpitations, chest pains, labored breathing, choking sensations, and paralysis in his legs and back.” Id.
The Eighth Circuit addressed the question of serious physical injury on three separate occasions. In Ashley, the prisoner alleged that prison officials repeatedly placed him in proximity to inmates on his enemy alert list and that he was twice attacked, once with a sharpened, nine-inch screwdriver and once with a butcher knife, and the court ruled that he had alleged imminent danger of serious physical harm. 147 F.3d at 717. In McAlphin, the prisoner alleged that he was denied dental extractions, that his gums became so infected he eventually needed five extractions, and two of the extractions had not been scheduled for six months during which time the decay spread. 281 F.3d at 710. When he filed the complaint, the two remaining extractions had not been made. Id. The court liberally construed the complaint as alleging that the prisoner was “in imminent danger of serious physical injury because of spreading infection in his mouth, ” which satisfied section 1915(g). Id. In contrast, in Martin, the court found that a prisoner's claim of imminent danger of serious physical injury failed. The prisoner alleged that he was forced to work outside in inclement weather on two occasions, once in cold weather without warm clothing and several months later in hot weather despite his blood pressure condition. 319 F.3d at 1050. The complaint also included “conclusory assertions that defendants were trying to kill Martin by forcing him to work in extreme conditions despite his blood pressure condition.” Id. The Eighth Circuit held that “[t]his type of general assertion is insufficient to invoke the exception to § 1915(g) absent specific fact allegations of ongoing serious physical injury, or of a pattern of misconduct evidencing the likelihood of imminent serious physical injury.” Id.
With this persuasive authority in mind, we turn to Brown's complaint, which we must construe liberally and the allegations of which we must accept as true. See Jackson v. Reese, 608 F.2d 159, 160 (5th Cir.1979); Hughes, 350 F.3d at 1159-60. In his complaint, Brown alleges that he has HIV and hepatitis. He alleges that on September 5, 2002, because his condition was deteriorating, he was prescribed medications for HIV and hepatitis by Dr. Walton. Brown alleges that, on October 30, 2002, Dr. Presnell stopped the prescribed treatment and, as a result, Brown suffered prolonged skin and newly developed scalp infections, severe pain in the eyes and vision problems, fatigue and prolonged stomach pains. In his amended complaint, Brown alleges that if not treated he would be exposed to “opportunistic infections, such as pneumonia, esophageal candidiasis, salmonella, and wasting syndrome, ” which would cause him to die sooner. Brown also states that he followed the proper grievance procedure, and in response to his grievance, was informed that “the physician [had seen him] recently, [he would] be seen in the next chronic clinic, [and the warden did] not feel that further action [was] warranted.” Liberally construed, Brown alleges a total withdrawal of treatment for serious diseases, as a result of which he suffers from severe ongoing complications, is more susceptible to various illnesses, and his condition will rapidly deteriorate.
The defendants offer two rebuttals. The defendants argue that these allegations fail to allege imminent danger of serious physical injury because skin problems do not constitute serious injury and Brown's allegations of eye problems are too vague. The defendants also argue that, “although [Brown's] illness may ultimately lead to serious physical problems and even death, Brown's allegations do not show that his treatment puts him in imminent danger.” These arguments fail.
Although some of the specific physical conditions about which Brown complains may not constitute serious injury, the issue is whether his complaint, as a whole, alleges imminent danger of serious physical injury. Viewed together, the afflictions of which Brown currently complains, including his HIV and hepatitis, and the alleged danger of more serious afflictions if he is not treated constitute imminent danger of serious physical injury. That Brown's illnesses are already serious does not preclude him from arguing that his condition is worsening more rapidly as a result of the complete withdrawal of treatment. The amended complaint alleges imminent danger of serious physical injury.

Brown, 387 F.3d at 1349-50.

         The examples that the Eleventh Circuit Court of Appeals discussed in the Brown case illustrate that an “imminent danger of serious physical injury” must relate to specific, serious threats to the complaining prisoner's health evidenced by physical symptoms or existing threats of imminent physical violence. In his response to the magistrate judge's show cause order, Mr. Acoff contends that the imminent danger exception applies because he is fighting physically with cellmates for space; because he is sleeping on the floor due to overcrowding and, consequently, is exposed to rats and poisonous spiders; and because he is inhaling air from vents in which black mold is located, causing him to “constantly cough[] and spit[] Blackish, Yellow, and ...


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