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 moredefinite-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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