Eleventh Circuit Grants Prisoner with Hep C Exception to PLRA Three Strikes Rule
The Eleventh Circuit Court of Appeals, in an unpublished decision, held a prisoner who had symptoms of fibrosis from Hepatitis C (HCV) and claimed prison officials refused to treat him was sufficient to satisfy that he was under imminent danger of serious physical harm. He, therefore, satisfied the exception to the three strikes rule in 28 U.S.C. § 1915(g) to proceed in forma pauperis.
The court’s March 5, 2011, opinion was issued in an appeal brought by Georgia prisoner Lester J. Smith. His civil rights action alleged he has chronic HCV and he was seeking treatment that Georgia prison officials have been denying him. The district court found, and Smith admitted, that he has three strikes under § 1915(g).
That provision of law prohibits a prisoner from proceeding in forma pauperis in a civil action when he “has, on 3 or more 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.” The only exception to the three strikes rule is when, “the prisoner is under imminent danger of serious physical injury.”
The district court rejected Smith’s claims of imminent danger and it denied him in forma pauperis status. Smith appealed. A judge with the Eleventh Circuit granted him in forma pauperis status after finding his appeal was not frivolous and that he made a showing of imminent danger of serious physical harm. Counsel was also appointed to Smith.
The Eleventh Circuit noted its precedent holds that a failure to treat HCV constitutes a threat of imminent danger in certain circumstances. Smith alleged he had symptoms consistent with his HCV at the F2 stage on the standard scale of progressive liver fibrosis.
In Hoffer v. Sec’y, Fla. Dep’t of Corr., 973 F.3d 1263 (11th Cir. 2020), the court affirmed a district court’s order requiring direct acting antiviral drugs for prisoners who had reached the F2 stage or beyond.
The Eleventh Circuit held that, “Smith adequately alleges the threat of imminent danger of serious physical injury.” Specifically, he alleged the HCV had caused “sores throughout his body, fatigue, vomiting, pain in the liver area, jaundice of the skin and eyes… loss of appetite at times, hemorrhaging, and deterioration of other body organs.”
The district court’s order was vacated and the case remanded for further proceedings. See: Smith v. Ward, 848 F. Appx 853 (11th Cir. 2021).