Case: 17-12882 Date Filed: 08/03/2018 Page: 1 of 7
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 17-12882 Non-Argument Calendar ________________________
D.C. Docket No. 0:17-cv-60757-DPG
NYKA O'CONNOR,
Plaintiff - Appellant,
versus
PAUL BACKMAN, Judge, 17th Judicial Circuit, Florida, MICHAEL J. SATZ, State Attorney, State Attorney’s Office,
Defendants - Appellees.
________________________
Appeal from the United States District Court for the Southern District of Florida ________________________
(August 3, 2018)
Before TJOFLAT, JORDAN, and NEWSOM, Circuit Judges.
PER CURIAM: Case: 17-12882 Date Filed: 08/03/2018 Page: 2 of 7
Nyka O’Connor, a Florida prisoner proceeding pro se, appeals the district
court’s dismissal with prejudice of his 42 U.S.C. § 1983 civil rights complaint
because he failed to meet the “imminent danger” exception to the Prison Litigation
Reform Act’s “three strikes” provision, 28 U.S.C. § 1915(g), and because he failed
to properly state a claim. Mr. O’Connor named numerous defendants and asserted
a wide variety of claims in his complaint, but his appeal focuses on his claims of
inadequate medical care and inadequate diet in prison, so those are the claims we
address.
II
We review de novo a district court’s dismissal under the PLRA’s “three
strikes” provision. See Mitchell v. Nobles, 873 F.3d 869, 873 (11th Cir. 2017).
We review de novo a Rule 12(b)(6) dismissal of a complaint. See Davila v. Delta
Air Lines, Inc., 326 F.3d 1183, 1185 (11th Cir. 2003). In assessing a complaint, we
must accept the plaintiff’s factual allegations as true, and we should not dismiss a
complaint unless the facts as pled do not state a claim for relief that is plausible on
its face. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
III
The “three strikes” provision of the PLRA 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 2 Case: 17-12882 Date Filed: 08/03/2018 Page: 3 of 7
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).
There is no doubt that Mr. O’Connor is a prolific litigator – the record
indicates that he has filed somewhere in the neighborhood of forty cases between
2005 and 2017 – and that more than three of them were dismissed for failure to
state a claim on which relief could be granted. See D.E. 9-1 (Pacer case locator
report for all cases filed by Nyka O’Connor, and official dockets and orders
showing dismissals). But our precedent is clear that a dismissal under the “three
strikes” provision should be without prejudice. See Dupree v. Palmer, 284 F.3d
1234, 1236 (11th Cir. 2002) (“[T]he proper procedure is for the district court to
dismiss the complaint without prejudice when it denies the prisoner leave to
proceed in forma pauperis pursuant to the three strikes provision of § 1915(g).”).
See also Mitchell, 873 F.3d at 872 (same). A “three strikes” prisoner is still
permitted to file, but must pay the full filing fee when he initiates a lawsuit, see
Dupree, 284 F.3d at 1236, unless he meets the “imminent danger” exception.
Assuming the district court was correct that Mr. O’Connor did not meet the
“imminent danger” exception, it erred by dismissing Mr. O’Connor’s complaint
with prejudice.
3 Case: 17-12882 Date Filed: 08/03/2018 Page: 4 of 7
IV
We next address whether Mr. O’Connor satisfies the “imminent danger”
exception to § 1915(g), and whether his complaint fails to state a claim under Rule
12(b)(6). The district court believed dismissal was appropriate because Mr.
O’Connor’s allegations “are conclusory” and because Mr. O’Connor “fails to
explain how each defendant is liable.” D.E. 15 at 2. But the district court’s
analysis is only one paragraph, and the magistrate judge’s “well-reasoned
analysis,” with which the district court agreed, is equally cursory – neither opinion
even mentions the content of Mr. O’Connor’s allegations, much less explains why
Mr. O’Connor fails to satisfy the “imminent danger” exception.
A prisoner must assert a present imminent danger, as opposed to a past
danger. We must assess the complaint as a whole, rather than each individual
physical condition or danger, to determine whether a prisoner has adequately
alleged an imminent danger of serious physical injury under § 1915(g). See Brown
v. Johnson, 387 F.3d 1344, 1350 (11th Cir. 2004). In Brown, for example, we held
that a prisoner who claimed withdrawal of treatment for HIV and hepatitis (which
resulted in serious and ongoing complications) met the standard. See id. And in
Mitchell, we held that a prisoner who alleged complete lack of treatment for
Hepatitis C (which resulted in cirrhosis) met the standard. See 873 F.3d at 874.
4 Case: 17-12882 Date Filed: 08/03/2018 Page: 5 of 7
Other circuits have also concluded that the imminent danger exception is
satisfied due to certain medical conditions. See, e.g., Andrews v. Cervantes, 493
F.3d 1047, 1055 (9th Cir. 2007) (finding that the risk of contracting HIV or
Hepatitis C through contact with cellmates carrying such diseases “raise[d] the
specter of serious physical injury” and constituted imminent danger because such
diseases “quite obviously cause serious health problems, and c[ould] result in
death”); McAlphin v. Toney, 281 F.3d 709, 710 (8th Cir. 2002) (finding that
delaying necessary tooth extractions, which resulted in a mouth infection,
constituted imminent danger); Gibbs v. Cross, 160 F.3d 962, 965-66 (3rd Cir.
1998) (finding that a prisoner’s continuing headaches and other symptoms caused
by extended exposure to dust, lint, and shower odor constituted imminent danger).
Although Mr. O’Connor contends that he has received inadequate care for at
least nine different physical ailments – including vision, dental, shoulder, skin, hip,
ankle, hand, and toe problems – we focus on his claims relating to his
gastrointestinal problems. These problems may, indeed, rise to the level of
imminent danger of serious physical injury to allow him to proceed in forma
pauperis under § 1915(g).
In a liberally-construed reading of the complaint, the allegations of which
must be taken as true, Mr. O’Connor claims that for years, he has suffered from
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Case: 17-12882 Date Filed: 08/03/2018 Page: 1 of 7
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 17-12882 Non-Argument Calendar ________________________
D.C. Docket No. 0:17-cv-60757-DPG
NYKA O'CONNOR,
Plaintiff - Appellant,
versus
PAUL BACKMAN, Judge, 17th Judicial Circuit, Florida, MICHAEL J. SATZ, State Attorney, State Attorney’s Office,
Defendants - Appellees.
________________________
Appeal from the United States District Court for the Southern District of Florida ________________________
(August 3, 2018)
Before TJOFLAT, JORDAN, and NEWSOM, Circuit Judges.
PER CURIAM: Case: 17-12882 Date Filed: 08/03/2018 Page: 2 of 7
Nyka O’Connor, a Florida prisoner proceeding pro se, appeals the district
court’s dismissal with prejudice of his 42 U.S.C. § 1983 civil rights complaint
because he failed to meet the “imminent danger” exception to the Prison Litigation
Reform Act’s “three strikes” provision, 28 U.S.C. § 1915(g), and because he failed
to properly state a claim. Mr. O’Connor named numerous defendants and asserted
a wide variety of claims in his complaint, but his appeal focuses on his claims of
inadequate medical care and inadequate diet in prison, so those are the claims we
address.
II
We review de novo a district court’s dismissal under the PLRA’s “three
strikes” provision. See Mitchell v. Nobles, 873 F.3d 869, 873 (11th Cir. 2017).
We review de novo a Rule 12(b)(6) dismissal of a complaint. See Davila v. Delta
Air Lines, Inc., 326 F.3d 1183, 1185 (11th Cir. 2003). In assessing a complaint, we
must accept the plaintiff’s factual allegations as true, and we should not dismiss a
complaint unless the facts as pled do not state a claim for relief that is plausible on
its face. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
III
The “three strikes” provision of the PLRA 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 2 Case: 17-12882 Date Filed: 08/03/2018 Page: 3 of 7
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).
There is no doubt that Mr. O’Connor is a prolific litigator – the record
indicates that he has filed somewhere in the neighborhood of forty cases between
2005 and 2017 – and that more than three of them were dismissed for failure to
state a claim on which relief could be granted. See D.E. 9-1 (Pacer case locator
report for all cases filed by Nyka O’Connor, and official dockets and orders
showing dismissals). But our precedent is clear that a dismissal under the “three
strikes” provision should be without prejudice. See Dupree v. Palmer, 284 F.3d
1234, 1236 (11th Cir. 2002) (“[T]he proper procedure is for the district court to
dismiss the complaint without prejudice when it denies the prisoner leave to
proceed in forma pauperis pursuant to the three strikes provision of § 1915(g).”).
See also Mitchell, 873 F.3d at 872 (same). A “three strikes” prisoner is still
permitted to file, but must pay the full filing fee when he initiates a lawsuit, see
Dupree, 284 F.3d at 1236, unless he meets the “imminent danger” exception.
Assuming the district court was correct that Mr. O’Connor did not meet the
“imminent danger” exception, it erred by dismissing Mr. O’Connor’s complaint
with prejudice.
3 Case: 17-12882 Date Filed: 08/03/2018 Page: 4 of 7
IV
We next address whether Mr. O’Connor satisfies the “imminent danger”
exception to § 1915(g), and whether his complaint fails to state a claim under Rule
12(b)(6). The district court believed dismissal was appropriate because Mr.
O’Connor’s allegations “are conclusory” and because Mr. O’Connor “fails to
explain how each defendant is liable.” D.E. 15 at 2. But the district court’s
analysis is only one paragraph, and the magistrate judge’s “well-reasoned
analysis,” with which the district court agreed, is equally cursory – neither opinion
even mentions the content of Mr. O’Connor’s allegations, much less explains why
Mr. O’Connor fails to satisfy the “imminent danger” exception.
A prisoner must assert a present imminent danger, as opposed to a past
danger. We must assess the complaint as a whole, rather than each individual
physical condition or danger, to determine whether a prisoner has adequately
alleged an imminent danger of serious physical injury under § 1915(g). See Brown
v. Johnson, 387 F.3d 1344, 1350 (11th Cir. 2004). In Brown, for example, we held
that a prisoner who claimed withdrawal of treatment for HIV and hepatitis (which
resulted in serious and ongoing complications) met the standard. See id. And in
Mitchell, we held that a prisoner who alleged complete lack of treatment for
Hepatitis C (which resulted in cirrhosis) met the standard. See 873 F.3d at 874.
4 Case: 17-12882 Date Filed: 08/03/2018 Page: 5 of 7
Other circuits have also concluded that the imminent danger exception is
satisfied due to certain medical conditions. See, e.g., Andrews v. Cervantes, 493
F.3d 1047, 1055 (9th Cir. 2007) (finding that the risk of contracting HIV or
Hepatitis C through contact with cellmates carrying such diseases “raise[d] the
specter of serious physical injury” and constituted imminent danger because such
diseases “quite obviously cause serious health problems, and c[ould] result in
death”); McAlphin v. Toney, 281 F.3d 709, 710 (8th Cir. 2002) (finding that
delaying necessary tooth extractions, which resulted in a mouth infection,
constituted imminent danger); Gibbs v. Cross, 160 F.3d 962, 965-66 (3rd Cir.
1998) (finding that a prisoner’s continuing headaches and other symptoms caused
by extended exposure to dust, lint, and shower odor constituted imminent danger).
Although Mr. O’Connor contends that he has received inadequate care for at
least nine different physical ailments – including vision, dental, shoulder, skin, hip,
ankle, hand, and toe problems – we focus on his claims relating to his
gastrointestinal problems. These problems may, indeed, rise to the level of
imminent danger of serious physical injury to allow him to proceed in forma
pauperis under § 1915(g).
In a liberally-construed reading of the complaint, the allegations of which
must be taken as true, Mr. O’Connor claims that for years, he has suffered from
severe gastrointestinal problems, which are exacerbated by prison personnel’s
5 Case: 17-12882 Date Filed: 08/03/2018 Page: 6 of 7
withdrawal of appropriate medication and refusal to offer him an appropriate
vegetarian diet. He has requested, but been denied, a non-standard specialized
therapeutic diet which would comply with both his medical needs and religious
beliefs. The symptoms of his ongoing gastrointestinal issues include severe
cramping, causing him to curl up in the fetal position with clenched fists and teeth
and forcing him to crawl to and from the toilet; bloody stools; acid reflux;
heartburn; and significant weight loss, resulting in a weight of 137 pounds on his
six-foot tall frame. These allegations satisfy the imminent danger standard. See
Brown, 387 F.3d at 1350; Mitchell, 873 F.3d at 874.
In addition, Mr. O’Connor claims that he suffers from gallstones, and that he
was approved for and consented to surgery to remove them in March of 2015, but
by the time of the complaint’s filing in April of 2017, no gallstone surgery had
occurred. Mr. O’Connor alleges that untreated gallstones could lead to an
infection of his gallbladder, the eruption of which, like appendicitis, could be fatal.
This two-year delay in the provision of approved surgery for a serious condition
satisfies the imminent danger standard.1
Although his pro se complaint is not a model of clarity, Mr. O’Connor
identifies defendants by name and job title, and in the section titled “Inadequate
1 We note as well that Mr. O’Connor asserts that he has skipped numerous medical call-outs (doctor’s appointments) because he was threatened with physical harm by prison personnel if he went to the call-outs. 6 Case: 17-12882 Date Filed: 08/03/2018 Page: 7 of 7
Health Care While Falsely Imprisoned,” he sets forth facts which name individual
doctors, nurses, and prison employees that he claims are responsible for the acts
underlying his claim. The district court did not specifically find that allowing Mr.
O’Connor to amend his complaint would be futile, but it agreed with the reasoning
of the magistrate judge, who recommended dismissal without leave to amend.
Here, too, we disagree with the district court. As we have explained, several of
Mr. O’Connor’s claims have substance and satisfy the “imminent danger”
standard.2
V
Based on the record before us, we reverse and remand the dismissal of Mr.
O’Connor’s complaint. Mr. O’Connor’s claims regarding his gastrointestinal
problems, and the prison personnel’s handling of those problems, satisfy the
imminent danger standard. He should be allowed to proceed in forma pauperis
under § 1915(g). Also, he should be given the opportunity to amend his complaint,
if required.
REVERSED AND REMANDED.
2 A pro se plaintiff should normally be allowed one opportunity to amend. See Wagner v. Daewoo Heavy Indus. Am. Corp., 314 F.3d 541, 542 (11th Cir. 2002) (“[W]e decide and intimate nothing about a party proceeding pro se.”). 7