Acoff v. Howell

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ALABAMA

EASTERN DIVISION

MARCO DANE ACOFF, )

)

Plaintiff, )

)

v. ) Case No.: 1:19-cv-0312-MHH-JEO

)

BRIAN HOWELL, et al., )

)

Defendants. )

MEMORANDUM OPINION AND ORDER

Plaintiff Marco Acoff, a pretrial detainee housed in the Calhoun County Jail,

filed this action pursuant to 42 U.S.C. § 1983. Mr. Acoff alleges due process

violations, false imprisonment, illegal arrest, conspiracy, cruel and unusual

punishment, excessive force, and unconstitutional living conditions. (Doc. 1, p. 3).

Mr. Acoff seeks compensatory and punitive damages and injunctive relief. (Doc. 1,

p. 5). Mr. Acoff filed an application to proceed in forma pauperis pursuant to 28

U.S.C. § 1915. (Doc. 2).

Consistent with the Prison Litigation Reform Act’s screening provision, Chief

Magistrate Judge Ott asked Mr. Acoff to show cause why the Court should not

dismiss this case pursuant to 28 U.S.C. § 1915(g) under the “three strikes rule” and

deny the application to proceed in forma pauperis. (Doc. 3). The PLRA’s three

strikes rule states:

In no event shall a prisoner bring a civil action or appeal a judgment in

a civil action or proceeding under this section if the prisoner has, 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.

28 U.S.C. § 1915(g). The Eleventh Circuit Court of Appeals has held that a prisoner

with a history of three or more meritless cases must pay the full filing fee when filing

a new lawsuit. Dupree v. Palmer, 284 F.3d 1234, 1236 (11th Cir. 2002); Vanderberg

v. Donaldson, 259 F.3d 1321, 1324 (11th Cir. 2001). Mr. Acoff acknowledges that

he has three strikes but contends that the PLRA’s imminent danger exception enables

him to proceed without first paying the full filing fee. (Doc. 4).

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.

The examples that the Eleventh Circuit Court of Appeals discussed in the

Brown case illustrate that an “imminent danger of serious physical injury” must

relate to specific, serious threats to the complaining prisoner’s health evidenced by

physical symptoms or existing threats of imminent physical violence. In his

response to the magistrate judge’s show cause order, Mr. Acoff contends that the

imminent danger exception applies because he is fighting physically with cellmates

for space; because he is sleeping on the floor due to overcrowding and, consequently,

is exposed to rats and poisonous spiders; and because he is inhaling air from vents

in which black mold is located, causing him to “constantly cough[] and spit[]

Blackish, Yellow, and Greenish mucus” and suffer upper respiratory problems.

(Doc. 4, pp. 1-2); (see also Doc. 1, pp. 7, 15, 18) (describing cell overcrowding and

black mold health issues that prison officials have ignored).

In his first motion to amend the complaint, Mr. Acoff describes various

grievances that he filed with prison officials between February 2019 and March 2019

concerning black mold and brown recluse spiders. (Doc. 5). In one grievance, Mr.

Acoff asserts that he “caught a brown recluse spider in [his] bed,” and he asks prison

officials to spray for spiders. (Doc. 5, p. 3). In another motion to amend his

complaint, Mr. Acoff alleges that another inmate attacked and stabbed him (Mr.

Acoff) in the neck and arm in April 2019. (Doc. 11). Mr. Acoff maintains that he

“made several attempts to notify officers of [the] incident before it happened.” (Doc.

11, p. 1). Mr. Acoff asserts that without another inmate’s help in “beating on the

windows to get [the officers’] attention[,]” he (Mr. Acoff) would have died. (Doc.

11, p. 1). Mr. Acoff contends that “his life is in imminent danger due to the lack of

officers and safety and security violation(s), etc.” (Doc. 11, pp. 1-2).

Mr. Acoff filed a motion for summary judgment to which he attached the

following assertions of fact concerning the conditions in which he is living:

1.#) There are no intercoms in the dorm(s) to help notify officers of

incidents/Fights or health issues which make[] us have to beat down

doors and windows to get officers[’] attention, which sometimes takes

hours. 2.#) There is [b]lack mold in [the] showers and vents, that

regulate air [f]low in [the] [j]ail; [about] which we’ve complained;

verbally and thr[ough] [g]rievances; and no one/staff has attempted to

come investigate the problems. 3.#) There [are spiders] ([b]rown

[r]ecluse[s]) . . . and [r]ats everywhere and they have not investigated

or tried to com[e] [and] [see] [the] problems. 4.#) Jail is overcrowded

and we are 3 to 4 people to a cell, which keeps tension among inmates

[b]ecause of [lack of] space. 5.#) We are sleeping on the [f]loor like

animals. 6.#) When inspectors come, they make everybody put mat[]s

in [the] cells or take away the [p]hones and TVs if we refuse. . . . We

as the inmates have complained either verbally or [t]hr[ough] the

[g]rievance proced[ures] to no avail[.] Please help.

(Doc. 6, p. 3). Mr. Acoff and other prisoners certified the truthfulness of these

allegations under penalty of perjury. (Doc. 6, p. 6; Doc. 6, p. 7, ¶ 27).

Consistent with Brown, the Court has considered Mr. Acoff’s allegations as a

whole. Brown, 387 F.3d at 1350. Although some of the conditions about which Mr.

Acoff complains may not rise to the level of a serious, imminent threat to his health,

Mr. Acoff’s allegations about untreated brown recluse spiders in his cell and black

mold in vents that is causing him to constantly cough up mucus and suffer respiratory

problems satisfies the imminent danger exception to the three strikes rule.

According to a medical website, multiple risks are associated with a brown

recluse spider bite:

The brown recluse venom is extremely poisonous, even more potent

than that of a rattlesnake. Yet recluse venom causes less disease than a

rattlesnake bite because of the small quantities injected into its victims.

The venom of the brown recluse is toxic to cells and tissues.

This venom is a collection of enzymes. One of the specific

enzymes, once released into the victim's skin, causes

destruction of local cell membranes, which disrupts the

integrity of tissues leading to local breakdown of skin, fat,

and blood vessels. This process leads to eventual tissue

death (necrosis) in areas immediately surrounding the bite

site.

The venom also induces in its victim an immune response.

The victim's immune system releases inflammatory

agents-histamines, cytokines, and interleukins-that recruit

signal specific disease-fighting white blood cells to the

area of injury. In severe cases, however, these same

inflammatory agents can themselves cause injury. These

secondary effects of the venom, although extremely rare,

can produce these more significant side effects of the

spider bite:

Destruction of red blood cells

Low platelet count

Blood clots in the capillaries and loss of

ability to form clots where needed

Acute renal failure (kidney damage)

Coma

Death

https://www.emedicinehealth.com/spider_bite_brown_recluse_spider_bite/article_

em.htm#brown_recluse_bite_causes (last visited Jan. 7, 2019). The seriousness of

a brown recluse spider bite will depend on many variables, but Mr. Acoff does not

have to endure a brown recluse spider bite and suffer medical consequences to meet

the imminent danger exception. See Helling v. McKinney, 509 U.S. 25, 33 (1993)

(explaining that “a prison inmate . . . could successfully complain about

demonstrably unsafe drinking water without waiting for an attack of dysentery”);

see also Gibbs, 160 F.3d at 965 (“Inmates ought to be able to complain about

‘unsafe, life-threatening condition[s] in their prison’ without waiting for something

to happen to them.”).

Mr. Acoff’s allegations about the potentially dangerous mold in the showers

and the vents at the Calhoun County Jail closely resemble the allegations in Gibbs

(cited with approval in Brown). In Gibbs, the plaintiff complained of being “forced

to breathe particles of dust and lint which were continuously being dispersed into his

cell through the ventilation system.” Gibbs, 160 F.3d at 965. The plaintiff alleged

symptoms of “‘severe headaches, change in voice, mucus that is full of dust and lint,

and watery eyes.’” Gibbs, 160 F.3d at 965. The plaintiff asserted that “a significant

possibility” existed that he was “under imminent danger of serious physical injury”

“depending on the nature of the particles he [was] breathing[.]” Gibbs, 160 F.3d at

965. The plaintiff alleged that prison staff had not “responded to his request to

address [the] situation[.]” Gibbs, 160 F.3d at 964. The defendants maintained that

the plaintiff had alleged a speculative injury. Gibbs, 160 F.3d at 965. The Third

Circuit Court of Appeals rejected the defendants’ position and explained that the

imminent danger exception does not require “allegations of an existing serious

physical injury . . . [;] [i]t is sufficient that the condition poses an imminent danger

of serious physical injury.” Gibbs, 160 F.3d at 967.

To proceed, Mr. Acoff must allege not only prison conditions that pose a

serious threat to his health but also facts showing that the defendants were

deliberately indifferent to those conditions.

[A] prison official cannot be found liable under the Eighth Amendment

for denying an inmate humane conditions of confinement unless the

official knows of and disregards an excessive risk to inmate health or

safety; the official must both be aware of facts from which the inference

could be drawn that a substantial risk of serious harm exists, and he

must also draw the inference.

Farmer v. Brennan, 511 U.S. 825, 837 (1994). In his initial complaint, Mr. Acoff

alleges that he complained to Captain Starr about the black mold in showers and

exhaust vents, and Captain Starr “never responded” or had the mold removed. (Doc.

1, p. 18). In his motion to amend his complaint, Mr. Acoff asserts that he complained

to maintenance twice about mold, once with no response and once with a response

from “J. Roebuck” that stated “will address,” (Doc. 5, p. 2); he filed a grievance

about brown recluse spiders and mold” to which J. Luker replied “I will check into

getting some spray,” (Doc. 5, p. 2); he filed a grievance about the brown recluse

spider that he caught in his bed to which “I. Chames” replied “we will alert pest

control,” (Doc. 5, p. 3); and he filed another black mold grievance to which he

received no response, (Doc. 5, p. 3).

Captain Starr and I. Chames are named defendants. (Doc. 1, p. 1). Accepting

Mr. Acoff’s allegations as true at this stage of the action, Mr. Acoff has alleged facts

that indicate that Captain Starr and I. Chames were aware of the conditions of

confinement, and Mr. Acoff has alleged facts that indicate that he filed numerous

requests for help because the defendants did not take steps to address the brown

recluse spiders or the black mold in vents and in showers.

Therefore, Mr. Acoff’s prison condition allegations concerning black mold

and brown recluse spiders meet the PLRA’s imminent danger exception to the three

strikes rule, and the Court grants Mr. Acoff’s in forma pauperis motion to pursue

those claims. (Doc. 2). The Court grants Mr. Acoff’s motion to amend his complaint

with respect to the allegations relating to conditions of confinement (Doc. 5, pp. 1-

3) but denies without prejudice the remainder of that motion. The Court denies

without prejudice Mr. Acoff’s remaining motions to amend and his conspiracy

motion. (Docs. 10, 11, 16, 17). The Court denies Mr. Acoff’s motions for summary

judgment without prejudice. (Docs. 6, 8,9, 15). The Court strikes from Mr. Acoff’s

complaint allegations that do not relate to the mold and brown recluse spider

conditions at the Calhoun County Jail.

If Mr. Acoff wants to add defendants, allegations, or claims to his lawsuit

unrelated to the black mold and brown recluse spider issues, then he may file an

amended complaint accompanied by payment of the full filing fee.

The Court does not have the power to change the venue of Mr. Acoff’s

criminal cases and denies Doc. 14 as moot.

The Court refers this matter to the magistrate judge for further proceedings.

DONE and ORDERED this 9th day of January, 2019.

adits Si avila _

Madeliss

UNITED STATES DISTRICT JUDGE

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