United States District Court, N.D. Alabama, Southern Division
MEMORANDUM OPINION
MADELINE HUGHES HAIKALA UNITED STATES DISTRICT JUDGE.
On
September 5, 2019, the magistrate judge entered a report in
which he recommended that this action be dismissed without
prejudice pursuant to the three-strikes provisions of the
Prison Litigation Reform Act (“PLRA”). (Doc. 3).
Mr. Payne-Bey has filed objections to the report and
recommendation in which he contends that the living
conditions at the Donaldson Correctional Facility where he is
housed place him imminent danger of serious physical injury.
(Doc. 4).
A
district court “may accept, reject, or modify, in whole
or part, the findings or recommendations made by the
magistrate judge.” 28 U.S.C. § 636(b)(1)(C). When
a party objects to a report and recommendation, the district
court must “make a de novo determination of those
portions of the report or specified proposed findings or
recommendations to which objection is made.”
Id. The Court reviews for plain error proposed
factual findings to which no objection is made, and the Court
reviews propositions of law de novo. Garvey v.
Vaughn, 993 F.2d 776, 779 n.9 (11th Cir. 1993); see
also United States v. Slay, 714 F.2d 1093, 1095 (11th
Cir. 1983) (per curiam), cert. denied, 464 U.S. 1050
(1984) (“The failure to object to the magistrate's
findings of fact prohibits an attack on appeal of the factual
findings adopted by the district court except on grounds of
plain error or manifest injustice.”) (internal citation
omitted); Macort v. Prem, Inc., 208 Fed.Appx. 781,
784 (11th Cir. 2006).
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.
Courts
have held that allegations of general prison conditions,
including overcrowding and the risk of potential violence,
are not sufficient to satisfy the imminent danger exception
to the three-strikes provisions of the PLRA. See, e.g.,
May v. Myers, No. 14-00271-KD-B, 2014 WL 3428930, at *2
(S.D. Ala July 15, 2014) (“May's generalized,
conclusory allegations regarding conditions at Holman, his
exposure to violence, and his risk of potential violence in
the future do not sufficiently address the “imminent
danger of serious bodily injury” requirement so as to
meet the § 1915(g) ‘imminent danger'
exception.”); Veteto v. Clerks, Judges and Justices
of Alabama Courts, No. 2:17-CV-689-WHA, 2017 WL 6617051,
at *3 (M.D. Ala. Oct. 19, 2017) (“To hold that
amorphous claims relating to a prisoner's conditions of
confinement render an inmate in “imminent danger of
serious physical injury” would eviscerate the three
strikes provision.”).
The
examples that the Eleventh Circuit Court of Appeals discussed
in the Brown case illustrate that an “imminent
danger of serious bodily injury” must relate to a
specific, existing health condition or threat of physical
violence as opposed to general prison conditions. The Court
has studied Mr. Payne-Bey's complaint and his objections
and finds that he has not alleged a specific health condition
or threat that he continues to face.
As the
magistrate judge noted, Mr. Payne-Bey describes general
prison conditions such as a drug epidemic in the Donald
Correctional Facility, the prison's failure to segregate
prisoners who have communicable diseases, and officers who
assault inmates. (Doc. 4, pp. 4, 6, 11). The Court does not
take allegations like these lightly, but none is sufficiently
specific to Mr. Payne-Bey ...