Opinion

BROWN v. NIGH

Court
District Court, N.D. Florida
Filed
Sep 5, 2023
Cited by
0 cases
Authority
More cited than 20.0%

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

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

A word about cookies

We need a few to keep you signed in and the library working. The rest help us see which pages people use and where they get stuck. They stay off unless you say yes.