# Acoff v. Howell

> District Court, N.D. Alabama · January 9, 2020

URL: https://www.frixlaw.com/law-library/cases/9989161

## Case

- **Court:** District Court, N.D. Alabama
- **Decided:** January 9, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9989161

## How later opinions describe it (automated extraction)

- explaining that “a prison inmate . . . could successfully complain about demonstrably unsafe drinking water without waiting for an attack of dysentery”

## Opinion text

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
11

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9989161. Public record. Not legal advice.