# Payne-Bey v. Ivey

> District Court, N.D. Alabama · October 21, 2019

URL: https://www.frixlaw.com/law-library/cases/9989019

## Case

- **Court:** District Court, N.D. Alabama
- **Decided:** October 21, 2019
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

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## Opinion text

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION

DARROW BERNARD PAYNE-BEY, )
)
Plaintiff, )
)
v. ) Case No.: 2:19-cv-1451-MHH-JHE
)
KAY IVEY, et al., )
)
Defendants. )

MEMORANDUM OPINION
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 to trigger the “imminent
danger of serious bodily injury” exception to the three-strikes rule.

In his objections, Mr. Payne-Bey discusses assaults upon him by two prison
guards in February 2017. Mr. Payne-Bey asserts that one of the guards threatened
to kill him, but he explains that the warden transferred that guard to another facility.

(Doc. 4, p. 11). Because the warden addressed and resolved that situation, it is not
a source of imminent danger of serious bodily injury to Mr. Payne-Bey today.
Also in his objections, Mr. Payne-Bey describes a severe allergic reaction he
had to a yellow jacket sting. He complains that he was given a Benadryl shot rather

than a pill. (Doc. 4, p. 12). He does not contend that the shot failed to resolve his
allergic reaction, so that situation is not a source of imminent danger of serious
bodily injury.
Mr. Payne-Bey devotes part of his complaint and his objections to a discussion
of multiple refusals by medical staff to transport him to a VA facility for an

examination of an old wrist injury. (Doc. 1, pp. 42-43; Doc. 4, pp. 7-10). He
contends that the failure to provide a VA examination has created a financial burden
on his family. (Doc. 1, pp. 42-43). The wrist injury qualifies as a specific medical

concern, but Mr. Payne-Bey has not alleged that he is in danger of serious bodily
injury because of lingering issues relating to his wrist injury. The financial concerns
that Mr. Payne-Bey raises do not provide an exception to the three-strikes rule.
Finally, in his complaint, Mr. Payne-Bey mentions in a list of injuries a “retina

tear” and “white flashes of light” in his right eye, but he makes no allegations in his
complaint or in his objections about those eye conditions. (Doc. 1, pp. 15, 25).
There are the sorts of conditions that could trigger the “imminent danger of serious

bodily injury” exception to the three-strikes rule if Mr. Payne-Bey were to allege
facts relating to this alleged injury.
Mr. Payne-Bey may pursue his claims in this case, but he must pay a filing
fee to pursue those claims; he may not proceed in forma pauperis. Alternatively, if

Mr. Payne-Bey would like to file a new complaint in which he, in good faith, alleges
facts concerning an “imminent danger of serious bodily injury” that are consistent
with the analysis in this opinion, then he may ask to proceed in forma pauperis, and
a judge will determine whether his allegations enable him to proceed without initial

payment of a filing fee.
Accordingly, having reviewed the materials in the record, the Court accepts
the magistrate judge’s recommendation. The Court will dismiss this action without
prejudice pursuant to 28 U.S.C. § 1915(g). Should Mr. Payne-Bey decide to pay the
full filing fee, the Court will reinstate Mr. Payne-Bey’s complaint in this action.
The Court will enter a separate final order.
DONE this 21st day of October, 2019.

adit bl adalh_
Mails. SSOP
UNITED STATES DISTRICT JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9989019. Public record. Not legal advice.