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Fifth Circuit Says Both Texas Prisoner’s Dismissed Suit and His Lost Appeal Count as “Strikes”

by Douglas Ankney

On July 10, 2023, the U.S. Court of Appeals for the Fifth Circuit dismissed Texas prisoner Anthony Prescott’s appeal, once again explaining the requirement of 28 U.S.C. § 1915(g) that applications to waive filing fees and proceed in forma pauperis (IFP) must be denied where a prisoner plaintiff in a civil action has had three or more previous suits or appeals dismissed as frivolous, unless the prisoner is in imminent danger of serious physical injury.

Prescott filed a pro se federal civil rights action against five University of Texas Medical Branch (UTMB) employees, which the federal court for the Southern District of Texas ultimately determined failed to state a valid legal claim. The district court dismissed the suit, counting the dismissal as one of Prescott’s three “strikes” under § 1915(g).

An earlier suit was dismissed in May 2019 for the same reason when defendant prison officials were found to enjoy immunity in their official capacities, and Prescott failed to plead any facts showing they violated his constitutional rights in their individual capacities. See: Prescott v. Abbott, USDC (W.D. Tex.), Case No. 1:18-cv-00957.

Before that, Prescott filed another suit that was dismissed in December 2018 in the same way—the defendant prison official enjoyed Eleventh Amendment immunity in her official capacity, and he failed to show she violated his constitutional rights in her individual capacity. A due process claim for an allegedly mishandled grievance was also dismissed because prisoners do not have a constitutional right to any particular grievance procedure, the district court said. See: Prescott v. Pace, USDC (S.D. Tex.), Case No. 3:18-cv-00378.

Then, in February 2021, a third suit he filed was dismissed in the same way. See: Prescott v. Doe, USDC (S.D. Tex.), Case No. 4:18-cv-04321. An appeal to that decision was dismissed by the Fifth Circuit in April 2022. See: Prescott v. Doe, 2022 LEXIS 9138 (5th Cir.). Under the Court’s accounting system, these were his third and fourth strikes. So when Prescott sought review of his dismissed claim against the UTMB employees, the district court denied his motion to proceed IFP, and so did the Fifth Circuit, on appeal.

The Court observed that § 1915(g) bars a prisoner from proceeding IFP after bringing three prior federal suits that are dismissed as frivolous or for failure to state a claim. Each such dismissal counts toward those three “strikes” regardless whether the dismissal was with or without prejudice, the Court added, citing Lomax v. Ortiz-Marquez, 140 S.Ct. 1721 (2020). If the dismissal is appealed and the appellate court subsequently dismisses the case, that determination counts as an additional strike, the Court continued, pointing to Hernandez v. Cooper, 2021 U.S. App. LEXIS 34403 (5th Cir.).

Thus, with five strikes against him, Prescott could proceed IFP only if he were in “imminent danger of serious physical injury,” the Court said, citing Adepegba v. Hammons, 103 F.3d 383 (5th Cir. 1996). And “the 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,” the Court continued, citing Choyce v. Dominguez, 160 F.3d 1068 (5th Cir. 1998). Further, “there must be a nexus between the supposed imminent danger and the allegations and claims in the underlying suit,” the Court added, pointing to Stine v. Fed. Bureau of Prisons Designation and Sentence Computation Unit, 571 F.App’x 352 (5th Cir. 2014).

Although Prescott had since been released from prison, at the time he filed his complaint he was in a Texas lockup where he alleged denial of proper medical treatment which would result in diabetes; that he suffered from an abscessed tooth; and that he was forced to eat food he believed was contaminated by other prisoners who viewed him as a snitch. That was enough to show Prescott faced “some danger,” the Court allowed, but imminent danger? That was “questionable,” the Court said.

That is, Prescott alleged denial of proper medical treatment, but he failed to show that it was ongoing—in fact, he had ultimately received dental treatment. Concerning his allegations of food contamination, the Court agreed those may be “sufficient to demonstrate imminent danger,” citing Camp v. Putnam, 807 F.App’x 303 (5th Cir. 2020). But Prescott’s allegations were mere “suspicions,” the Court said.

Accordingly, it found no abuse of discretion by the district court in denying Prescott’s motion to proceed IFP. “He has accumulated more than three strikes and has failed to demonstrate imminent danger in this case,” the Court declared, dismissing his appeal and barring him from proceeding IFP in any civil action or appeal filed while incarcerated unless “in imminent danger of serious physical injury as defined by § 1915(g).” See: Prescott v. UTMB Galveston Tex., 73 F.4th 315 (5th Cir. 2023).  

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Related legal case

Prescott v. UTMB Galveston Tex.