Prescott v. UTMB

Case: 21-40856 Document: 00516815355 Page: 1 Date Filed: 07/10/2023

United States Court of Appeals

for the Fifth Circuit United States Court of Appeals

Fifth Circuit

____________ FILED

July 10, 2023

No. 21-40856 Lyle W. Cayce

____________ Clerk

Anthony Prescott,

Plaintiff—Appellant,

versus

UTMB Galveston Texas; Warden Michael Butcher;

D.D.S. Andres Gilman; Practice Manager Pam Pace; RN

Linda Garner,

Defendants—Appellees.

______________________________

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 3:19-CV-190

______________________________

Before Richman, Chief Judge, and Stewart and Douglas, Circuit

Judges.

Carl E. Stewart, Circuit Judge:

This appeal arises from pro se plaintiff Anthony Prescott’s suit against

five University of Texas Medical Branch (“UTMB”) personnel. After

reviewing the pleadings and Prescott’s more definite statement, the district

court determined that he failed to state a claim and dismissed the complaint.

He timely appealed and filed a motion to proceed on appeal in forma pauperis

(“IFP”). The district court denied Prescott’s IFP motion reasoning that he

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No. 21-40856

was no longer eligible under 28 U.S.C. § 1915(g). This court ordered the IFP

motion be carried with the case on appeal. For the following reasons, we have

determined that Prescott has accumulated more than three strikes and has

not established imminent danger, thus his motion to proceed IFP is

DENIED, and his appeal is DISMISSED for failure to pay the required

filing fees. See 28 U.S.C. §§ 1911–14.

I. FACTS & PROCEDURAL HISTORY

Prescott was an inmate in the Texas Department of Criminal Justice

at the time he filed this suit against five UTMB personnel under 42

U.S.C. § 1983. After reviewing the amended complaint and the more-

definite-statement,1 the district court determined that Prescott failed to plead

a § 1983 claim as to each defendant. Further, the district court determined,

sua sponte, that the individual defendants were entitled to Eleventh

Amendment immunity from claims of monetary damages because they acted

on behalf of the state. It dismissed the case with prejudice under 28 U.S.C.

§§ 1915(e)(2)(B) and 1915A(b) and concluded that the dismissal counted as

a strike for purposes of 28 U.S.C. § 1915(g).

Prescott timely appealed the district court’s order and filed a motion

for leave to proceed IFP. The district court denied the motion after

determining that he was no longer eligible for IFP-status because he had

already accumulated at least three strikes and failed to demonstrate that he

qualified for § 1915(g)’s imminent danger exception. The district court based

its decision on the strikes that Prescott accumulated in: 1. Prescott v. UTMB,

Civil Action No. 3:19-cv-190, Dkt. 23 (S.D. Tex. Oct. 22, 2021); 2. Prescott v.

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1

When a complaint fails to provide adequate notice, it can be cured with a Rule

12(e) motion for a more definite statement. See Swierkiewicz v. Sorema N. A., 534 U.S. 506,

514 (2002).

2

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Doe, Civil Action No. 4:18-cv-4231, Dkt. 28 (S.D. Tex. Feb. 26, 2021); 3.

Prescott v. Pace, Civil Action No. 3:18-cv-378, Dkt. 6 (S.D. Tex. Dec. 6, 2018);

4. Prescott v. Abbott, Civil Action No. 1:18-cv-957, Dkts. 5, 14 (W.D. Tex. May

20, 2019); and 5. Prescott v. Abbott, 801 F. App’x 335, 336 (5th Cir. 2020) (per

curiam) (unpublished).

Prescott then filed a motion to proceed IFP, along with a supporting

affidavit with this court and a judge ordered that his IFP motion be carried

with the case. There are three issues on appeal, but because IFP-status is a

threshold question, it is the first and, ultimately, the only question we

address.

II. STANDARD OF REVIEW

While denial of an IFP motion is generally reviewed for abuse of

discretion, whether a prior dismissal constitutes a strike is a legal question

which is reviewed de novo. See Camp v. McGill, 789 F. App’x 449, 450 (5th

Cir. 2020) (per curiam) (unpublished) (“Although our court has not

expressly established a standard of review for a district court’s conclusion

that a prior dismissal counts as a strike for purposes of

§ 1915(g) . . . [w]hether dismissal constitutes a strike is a purely legal

question, so we join our sister circuits in reviewing the issue de novo.”).

Further, “[i]t is well-established that pro se complaints are held to less

stringent standards than formal pleadings drafted by lawyers.” Taylor v.

Books A Million, Inc., 296 F.3d 376, 378 (5th Cir. 2002) (citation and

quotation marks omitted). “However, regardless of whether the plaintiff is

proceeding pro se or is represented by counsel, conclusory allegations or legal

conclusions masquerading as factual conclusions will not suffice to prevent a

motion to dismiss.” Id. (citation and quotation marks omitted).

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III. DISCUSSION

In his motion for IFP before this court, Prescott argues that the district

court erred in denying his motion for IFP because a strike cannot be issued

when his case is pending on appeal. He also argues that he fits within the

imminent danger exception to § 1915(g). We address each argument in turn.

1. 28 U.S.C. § 1915 (g) — Three Strike Rule

a. Strikes Count Even While on Appeal

We begin our analysis by examining what constitutes a strike for

§ 1915(g) purposes. Under 28 U.S.C. § 1915(b), this court may permit a party

to proceed IFP on appeal if he establishes financial eligibility. Section 1915(g)

prohibits IFP when a prisoner:

[H]as, 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.

Lomax v. Ortiz-Marquez, 140 S. Ct. 1724 n.1, 1727 (2020) (“The text of the

[Prison Litigation Reform Act (“PLRA”)]’s three-strikes provision makes

this case an easy call. A dismissal of a suit for failure to state a claim counts

as a strike, whether or not with prejudice.”); Sellers v. Plattsmier, 637 F.

App’x 111, 113 (5th Cir. 2015) (per curiam) (unpublished) (holding that “the

district court’s dismissal of Sellers’s complaint as frivolous and for suing an

immune defendant and this court’s dismissal of this appeal as frivolous count

as two strikes under § 1915(g)”). “The three strikes provision was designed

to filter out the bad claims and facilitate consideration of the good.” Coleman

v. Tollefson, 575 U.S. 532, 539 (2015) (citation and quotation marks omitted).

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Thus, the decision as to whether a strike applies solely depends on the basis

for the dismissal. See Lomax, 140 S. Ct. at 1724–25.

With regard to how strikes are counted, the Supreme Court and the

Fifth Circuit have held that a strike counts even if the case is pending on

appeal. In Coleman, the Court interpreted § 1915 as treating a dismissal in a

district court as a “prior occasion” separate and apart from the appeal.

Coleman, 575 U.S. at 538 (“The [IFP] statute repeatedly treats the trial and

appellate stages of litigation as distinct.”). The Court held that “[a] prior

dismissal on a statutorily enumerated ground counts as a strike even if the

dismissal is the subject of an appeal.” Id. at 537. We have repeatedly held

the same and have determined that a strike may be warranted for qualifying

dismissals in both the district court and on appeal. See also McCollum v. Lewis,

No. 21-11259, 2022 WL 3928526 at *1 (5th Cir. Aug. 31, 2022) (per curiam)

(unpublished) (“Both the district court’s dismissal of [the plaintiff’s] claims

as frivolous and this court’s dismissal of the appeal as frivolous count as

strikes for purposes of § 1915(g).”); Hernandez v. Cooper, No. 20-40607,

2021 WL 5444742 at *1 (5th Cir. Nov. 19, 2021) (per curiam) (unpublished)

(“The dismissal of the appeal and the district court’s dismissal of the

complaint count as two strikes under 28 U.S.C. § 1915(g).”).

Having established that a plaintiff may receive a strike based on a

district court decision and receive an additional strike by this court if the

appeal is frivolous, we now turn to whether Prescott has accumulated three

strikes pursuant to § 1915(g) to determine whether the district court erred in

its denial of IFP.

b. Prescott’s Strike History

Strike One

In Prescott v. Abbott, the district court, adopting the recommendation

of the magistrate judge, dismissed Prescott’s claims. See Civil Action No.

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1:18-cv- 957, Dkts. 5, 14 (W.D. Tex. May 20, 2019). It determined that the

named defendants were immune from suit because Prescott did not allege

facts to support that the defendants violated his constitutional rights in their

individual capacities, and it dismissed the claims as frivolous. See Sellers, 637

F. App’x at 113. On November 30, 2018, the district court issued Prescott

his first strike. Prescott appealed that decision.2 While that case was pending

on appeal, a separate lawsuit was pending in a different federal district court.

Strike Two

In Prescott v. Pace, the district court determined that Prescott failed to

state a claim because: 1. the Eleventh Amendment immunized the defendant

in her official capacity; 2. there were no facts showing that the defendant was

liable for Eighth Amendment violations in her individual capacity; and 3. the

claims that the defendant’s improper handling of his grievances was a

violation of the Due Process Clause were without merit. See Civil Action No.

3:18-cv-378, Dkt. 6 (S.D. Tex. Dec. 6, 2018); see also Sellers, 637 F. App’x at

113. On December 6, 2018, the district court determined that Prescott failed

to state a claim and dismissed the case with prejudice. This dismissal counted

as his second strike. See Lomax, 140 S. Ct. at 1724 (concluding that “[u]nder

[§ 1915(g)], a prisoner accrues a strike for any action dismissed on the

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2

In Prescott v. Abbott, Prescott asserted that the district court erred in holding that

the defendants were entitled to immunity under the Eleventh Amendment because their

immunity was abrogated under the American with Disabilities Act (“ADA”) and § 504 of

the Rehabilitation Act (“RA”). See 801 F. App’x 335, 336 (5th Cir. 2020) (per curiam)

(unpublished). A panel of this court held that Prescott failed to show that he was entitled

to relief under the ADA and RA and that his remaining claims were conclusory and

speculative. Id. We also concluded that Prescott failed to show how the district court

abused its discretion in dismissing his claims as frivolous and thus affirmed the district

court’s ruling. Id.; see also Taylor, 296 F.3d at 378. On April 17, 2020, the panel affirmed

the district court’s strike and issued Prescott a warning that if he reached three strikes, he

may not proceed IFP in any civil action or appeal filed while he is incarcerated unless he is

under imminent danger of serious physical injury.

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ground[ ] that it . . . fails to state a claim upon which relief may be granted”)

(quotations omitted).

Strikes Three & Four

In 2021, Prescott received his third strike in Prescott v. Doe, for failure

to state a claim and frivolity. See Civil Action No. 4:18-cv-04231, Dkt. 29

(S.D. Tex. Feb. 26, 2021). In April 2022, after filing his notice of appeal in

the instant case, a panel of this court decided Prescott v. Doe. See No. 21-

20151, 2022 WL 1010693 at *1 (5th Cir. Apr. 5, 2022) (per curiam)

(unpublished) (citing Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983)).

There we concluded that Prescott’s appeal was without merit and thus

frivolous because he did not demonstrate how the district court erred in

dismissing his case for failure to state a claim. Id. We denied his IFP motion

and dismissed the case. We further determined that the dismissal of the

district court as well as dismissal of the appeal counted as two additional

strikes. See McGarrah v. Alford, 783 F.3d 584, 584–85 (5th Cir. 2015) (per

curiam). We barred Prescott from proceeding IFP in any civil action or appeal

and warned him that “any pending or future frivolous or repetitive filings in

this court or any court subject to this court’s jurisdiction may subject him to

additional sanctions.” Doe, 2022 WL 1010693 at *1. Despite only referencing

the one strike he received in Abbott, these two strikes counted as Prescott’s

third and fourth strikes.

Strike Five

Turning now to the instant appeal, Prescott filed this case in federal

district court in June 2019 before receiving his third strike in Doe and warning

in the Abbott appeal. He filed his amended complaint in October 2020, after

receiving his warning in Abbott. Because this case was filed in district court

during the pendency of Prescott’s aforementioned appeals, however, he was

able to proceed IFP because he had not yet accumulated his third strike. The

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district court reviewed the pleadings and dismissed the case for failure to

state a claim with prejudice and issued Prescott another strike, his fifth. See

Lomax, 140 S. Ct. at 1727.

By the time Prescott filed his notice of appeal in November 2021, he

was on notice that he received four strikes, one warning, and was barred from

proceeding IFP in a civil case unless he met the imminent danger exception.3

After carefully reviewing his strike history, we conclude that Prescott has

properly received at least three strikes in accordance with 28 U.S.C.

§ 1915(g). Contrary to his assertions4, we need not reach the question left

open by Coleman on whether a third strike issued in a case pending on appeal

may count for purposes of determining IFP status. Coleman, 575 U.S. at 540–

41. This is because the district court’s strike here was his fourth not third and

thus his IFP status does not pivot on that point. Consequently, his appeal

may not proceed IFP unless he establishes the existence of imminent danger.

2. 28 U.S.C. § 1915(g) Exception —Imminent Danger

Under § 1915(g), Prescott may pursue another action in federal court

under IFP-status only if he is in “imminent danger of serious physical

injury.” See Adepega v. Hammons, 103 F.3d 383, 388 (5th Cir. 1996).

Prescott argues that he qualifies for this exception because he was

repeatedly denied proper medical treatment in UTMB which, according to

him, will likely result in the development of diabetes. He argues that he

suffers from an abscessed tooth with an external chin fistula and a reoccurring

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3

Although our decision relies only on the four strikes Prescott received prior to

filing his notice of appeal (i.e., strikes issued by the district courts in Abbott, Pace, Doe, and

the instant case), it is worth noting that, to date, Prescott has accumulated five strikes and

two warnings.

4

Prescott argues that a strike issued by a district court in a case that is on appeal

should not count during the pendency of that appeal.

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infection that he believes will spread in his mouth. Finally, he alleges that he

was forced to eat food that he thought was contaminated by other inmates

who viewed him as a snitch. He asserts that his consumption of this food may

give rise to health concerns.

“[T]he determination as to whether a prisoner is in ‘imminent

danger’ must be made as of the time that he seeks to file IFP his complaint or

notice of appeal.” Choyce v. Dominguez, 160 F.3d 1068, 1070 (5th Cir. 1998)

(per curiam). Although Prescott was transferred out of the unit where the

alleged imminent danger was said to have occurred and has since been

released from prison, at the time he filed his notice of appeal, he was housed

in the unit in question. Thus, we determine imminent danger as if he was still

incarcerated. See id. Further, we have held that there must be a nexus

between the supposed imminent danger and the allegations and claims in the

underlying suit. See Stine v. Fed. Bureau of Prisons Designation & Sentence

Computation Unit, 571 F. App’x 352, 354 (5th Cir. 2014) (per curiam)

(unpublished). Though some of the danger Prescott argues is related to the

underlying suit, the imminence is questionable. Specifically, Prescott argues

denial of proper medical treatment but fails to establish how he was denied

treatment and that the denial was ongoing at the time he filed this suit. The

district court determined that Prescott had a history of dental concerns and

that he refused dental treatment on more than one occasion until he finally

approved the treatment which resolved the dental issue being complained of

here.

With regard to food contamination, we have held that specific and

detailed allegations of food contamination are sufficient to demonstrate

imminent danger. See Camp v. Putnam, 807 F. App’x 303, 307 n.2 (5th Cir.

2020) (per curiam) (unpublished) (holding that the plaintiff’s allegations

“that the kitchen mixes spoiled food with new food, contaminating the entire

meal and creating the risk of contracting salmonella and food poisoning” was

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sufficient “[b]ecause salmonella and food poisoning can be life-threatening

illnesses”). That is not the case here.

In this case, Prescott asserts a series of suspicions that his food had

been tainted and assumes it is because he was viewed as a “snitch,” but he

does not allege any facts to support allegations of food contamination.

Instead, Prescott argues that his alleged contaminated food is the likely result

of ineffective training and prison policies. These allegations are conclusory

and speculative and thus fail to demonstrate imminent danger as required by

§ 1915(g). See Taylor, 296 F.3d at 378.

Accordingly, we hold that the district court did not abuse its discretion

in denying Prescott’s motion to proceed IFP. See Black v. Warren, 134 F.3d

732, 733–34 (5th Cir. 1998). He has accumulated more than three strikes and

has failed to demonstrate imminent danger in this case. Therefore, we

DISMISS his appeal and bar him from proceeding IFP in any civil action or

appeal filed while he is incarcerated or detained in any facility unless he is in

imminent danger of serious physical injury as defined by § 1915(g).

Alternatively, he may pay the appropriate fees. He may resume any claims

dismissed under § 1915(g), if he decides to pursue them, under the fee

provisions of 28 U.S.C. §§ 1911–14.

IV. CONCLUSION

For the foregoing reasons, Prescott’s motion for leave to proceed IFP

is DENIED, and his appeal is DISMISSED for failure to pay filing fees

pursuant to 28 U.S.C. §§ 1911–14.

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