cleaned up and quoting Medberry v. Butler, 185 F.3d 1189, 1192-93 (11th Cir. 1999)
How later courts described this case
- cleaned up and quoting Medberry v. Butler, 185 F.3d 1189, 1192-93 (11th Cir. 1999)
Written by the judges who cited it.
The opinion
IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF FLORIDA
GAINESVILLE DIVISION
EDWARD LEE BROWN,
Plaintiff,
v. Case No. 1:23-cv-116-AW-MAF
MICHAEL NIGH, et al.,
Defendants.
_______________________________/
ORDER ADOPTING REPORT AND RECOMMENDATION IN PART
Pro se prisoner Edward Lee Brown brought this § 1983 case and moved for
leave to proceed in forma pauperis. ECF Nos. 1, 2. The magistrate judge screened
Brown’s initial complaint and recommended dismissal. ECF No. 5. Brown filed an
amended complaint, ECF No. 7, and the magistrate judge again recommended
dismissal because Brown is a three-striker under the PLRA, has not sufficiently
alleged imminent danger of serious physical injury, and has not paid the filing fee,
ECF No. 9 at 1-2. Brown filed objections to the report and recommendation, ECF
No. 10, and I have considered de novo the issues he raised.
Having carefully considered the matter, I now adopt the supplemental report
and recommendation to the extent it recommends dismissal under the three-strikes
provision. I do not reach the report and recommendation’s alternate conclusion that
Brown’s affirmative misrepresentation of his litigation history also warrants
dismissal.
The PLRA’s three-strikes provision prohibits a prisoner from bringing a civil
action and proceeding in forma pauperis if he has, on at least three occasions,
“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.” 28 U.S.C. § 1915(g). There is an exception if “the prisoner is under
imminent danger of serious physical injury.” Id. Brown admits in his amended
complaint he is a three-striker, but he says the prison staff’s ongoing misconduct
shows “the likelihood that [he is] under imminent danger of serious physical injury.”
ECF No. 7 at 8.
To satisfy the imminent-danger exception, though, Brown must allege specific
facts showing “he is in imminent danger ‘at the time he seeks to file his suit in district
court.’” Daker v. Ward, 999 F.3d 1300, 1310-11 (11th Cir. 2021) (cleaned up and
quoting Medberry v. Butler, 185 F.3d 1189, 1192-93 (11th Cir. 1999)); see also id.
at 1311 (“General assertions . . . are ‘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.’” (quoting Brown v. Johnson, 387 F.3d 1344, 1350 (11th Cir. 2004))).
Brown’s amended complaint alleges more about his medical condition and treatment
than before. But even accepting the new allegations as true and liberally construing
the complaint, see Daker, 999 F.3d at 1333, the additional details do not show Brown
was in imminent danger of serious physical injury at the time the complaint was
filed.
Brown alleges he suffers “extensive pain” in his back and head because he
was assaulted eight months ago. ECF No. 7 at 8. He says the pain triggered his
“seizures to come more than normal, putting [him] in fear that [he] may go into a
major seizure that could take [his] life.” Id. After the assault, Brown alleges, he asked
a nurse for pain medication to reduce his risk of seizures, but she refused his request.
Id. at 7-8. But that happened months before Brown filed his complaint, and these
allegations do not satisfy the § 1915(g) exception. See Daker, 999 F.3d at 1310-11.
Brown also claims the jail staff’s ongoing misconduct—denying him pain
medication—shows the likelihood of his imminent physical injury because he needs
the pain medication to control the frequency of his seizures. ECF No. 7 at 9. At some
point after his assault, he was prescribed the pain medication Naproxen. Id. at 8. That
prescription was revoked after jail staff reportedly found 149 tablets of Naproxen
hidden in Brown’s cell. Id. at 9-10. Brown claims the staff fabricated the report “as
an excuse to deny [him] pain medication . . . to keep [him] constantly at risk of
catching a major seizure.” Id. at 9.
Brown has not identified the frequency of his seizures or even when his most
recent seizure was. In fact, he has not alleged any details to support his general claim
that the pain medication would control the frequency of his seizures. For example,
he has not claimed he was seizure-free or experienced a substantial reduction in
seizures when he took Naproxen. Without these sorts of details, there is no way to
conclude that failing to prescribe him pain medication makes serious physical injury
imminent—or even likely.
Finally, to the extent Brown complains that the magistrate judge did not treat
his amended complaint as an initial filing in a new case (ECF No. 10 at 2), I note
that Brown filed his amended complaint with the case number from this case. ECF
No. 7.
The supplemental report and recommendation (ECF No. 9) is adopted in part.
The clerk will enter a judgment that says, “Plaintiff’s claims are DISMISSED
without prejudice under the PLRA three-strikes provision.” The amended motion for
leave to proceed in forma pauperis (ECF No. 8) is DENIED.
The clerk will close the file.
SO ORDERED on September 5, 2023.
s/ Allen Winsor
United States District Judge