Case: 17-60246 Document: 00515971165 Page: 1 Date Filed: 08/09/2021
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
FILED
August 9, 2021
No. 17-60246 Lyle W. Cayce
Clerk
John Hale,
Plaintiff—Appellant,
versus
Harrison County Board of Supervisors; Unknown
Washington, Ms. - Legal Assistance - in official and individual
capacity; Unknown Coulter, Doctor; Nurse Tara
Kutscherenko; Jaclyn Simmons Meyer; Unknown
Sanderson, Warden; Captain Unknown Lege, Assistant
Warden; Sheriff Unknown Brisolara; Doctor Jeffery
Knight; A. Johnson, Deputy; Unknown Wilson, Deputy;
Sergeant Unknown Tarpley; Sergeant Unknown
French,
Defendants—Appellees.
Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 1:14-cv-61
Before Davis, Haynes, and Oldham, Circuit Judges.
Per Curiam:
Plaintiff John Hale is a vexatious litigant. He admits that he files
federal lawsuits against his custodians as a means of intimidating them to
Case: 17-60246 Document: 00515971165 Page: 2 Date Filed: 08/09/2021
No. 17-60246
comply with his demands for things like antacid and high-protein food. This
is his seventh of at least twelve such complaints. Confronting his arguments,
the district court entered summary judgment in favor of the defendants and
imposed a third strike under the Prison Litigation Reform Act (“PLRA”).
We dismiss the appeal and bar Hale from filing additional abusive suits.
I.
A.
Since 2004, Hale has filed at least twelve federal lawsuits. Here is a
brief summary of his litigation history:
1. In his first suit, Hale claimed inter alia that prison medical staff were
deliberately indifferent when they denied him his preferred medication.
See Hale v. Harrison Cnty. Bd. of Supervisors, No. 1:03-cv-840, ECF No. 8
(S.D. Miss. Jan. 8, 2004). The district court dismissed those claims with
prejudice, see id., ECF No. 126 (Nov. 4, 2005), and the parties settled all
other claims, see id., ECF No. 257 (April 28, 2008).
2. Hale’s second suit alleged similar violations of federal law, but he
voluntarily dismissed it. See Hale v. Rios, No. 1:04-cv-461, ECF No. 4
(S.D. Miss. April 20, 2004).
3. In his third suit, Hale alleged inadequate medical treatment, denial of a
humane diet, and violations of the Americans with Disabilities Act
(“ADA”). See Hale v. Mississippi, No. 2:06-cv-245, ECF No. 1 (S.D.
Miss. Oct. 24, 2006). The case zig-zagged between the district court and
the Fifth Circuit, see Hale v. King, 642 F.3d 492 (5th Cir. 2011) (per
curiam), but the district court eventually dismissed all of Hale’s claims on
the merits, see No. 2:06-cv-245, ECF No. 160 (Jan. 15, 2013).
4. While his third suit was pending, Hale filed his fourth lawsuit claiming
prison officials violated the First Amendment by interfering with his right
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to access the court. See Hale v. Harrison Cnty. Bd. of Supervisors, No. 1:07-
cv-956, ECF No. 1 (S.D. Miss. July 20, 2007). The parties eventually
settled. See id., ECF No. 70 (April 28, 2008).
5. Around the same time, Hale filed a fifth suit alleging that prison officials
retaliated against him for filing his third lawsuit. Hale v. Harrison Cnty.
Bd. of Supervisors, No. 1:08-cv-1385, ECF No. 1 (S.D. Miss. Nov. 6,
2008). The district court dismissed that case too. See id., ECF No. 126
(Feb. 10, 2011).
6. In 2012, he filed his sixth lawsuit claiming the prison violated the ADA by
denying him an extra mat for sleeping and a high-protein diet. See Hale v.
Lege, No. 1:12-cv-130, ECF No. 1 (S.D. Miss. April 25, 2012). The district
court again dismissed the case. See id., ECF No. 47 (Jan. 9, 2013).
7. The instant case is Hale’s seventh lawsuit.
8. While this case was pending, Hale filed his eighth lawsuit against a
physician, a kitchen supervisor, and other staff at the East Mississippi
Correctional Facility for an array of alleged constitutional and statutory
violations. See Hale v. Abangan, No. 3:15-cv-170, ECF No. 1 (S.D. Miss.
Mar. 9, 2015). The district court described Hale “an abusive litigant” and
dismissed the case with prejudice. Id., ECF No. 250, at 9 (Jan. 26, 2018).
9. Hale filed his ninth suit in 2016, alleging that a nurse practitioner
retaliated against him for his prior lawsuits by denying him pain
treatment. See Hale v. Smith, 3:16-cv-105, ECF No. 1 (S.D. Miss. Feb. 11,
2016). Hale voluntarily dismissed that suit shortly after filing. See id., ECF
No. 4 (Mar. 21, 2016).
10. Hale then filed his tenth suit against medical providers for their refusal to
give him his preferred narcotic. See Hale v. Hopson, 3:16-cv-772, ECF. No.
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1 (S.D. Miss. Oct. 3, 2016). That case, too, was voluntarily dismissed. See
id., ECF No. 11 (Mar. 2, 2017).
11. Then Hale filed his eleventh lawsuit against medical providers and
corrections officials for alleged violations of the ADA and their refusal to
prescribe certain medications to him. See Hale v. Arnold, No. 3:18-cv-754,
ECF. No. 1 (S.D. Miss. Oct. 29, 2018). Hale soon voluntarily dismissed
that case too. See id., ECF No. 10 (April 1, 2019).
12. Hale filed his most recent case against the prison medical director and
other prison staff for failing to provide him with adequate pain medication
and other medical accommodations. See Hale v. Arnold, No. 3:19-cv-813,
ECF No.1 (S.D. Miss. Nov. 12, 2019). That suit remains pending.
B.
In this case, Hale sued prison officials, county officials, and medical
supervisors who oversee the Harrison County Adult Detention Center
(“HCDC”) in Gulfport, Mississippi. Hale claimed the officials violated his
rights by inter alia, (1) impeding his access to courts and violating his right to
affordable bond; (2) denying him with sufficient pain medication,
administering medication in crushed (rather than whole-pill) form, denying
his request for a high-protein diet, failing to provide him with multiple Tums
per day, and denying him his preferred dental treatment; (3) failing to fix a
leaky roof which caused him to slip and fall; and (4) failing to administer the
prison effectively. He sought relief under 42 U.S.C. §§ 1983 and 1985, the
ADA, a consent decree, and Mississippi tort law.
While the complaint was pending, Hale unsuccessfully sought
emergency injunctive relief and a temporary restraining order. He also filed
unsuccessful petitions to enforce a consent decree and to initiate contempt
proceedings against prison officials for perceived violations of the consent
decree. The district court denied his motion for the appointment of counsel,
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and denied him authorization to proceed in forma pauperis (“IFP”), finding
that any appeal would not be taken in good faith. Hale appealed anyway. Our
court denied Hale authorization to proceed IFP and dismissed his
interlocutory appeal as frivolous and for lack of jurisdiction. See Hale v.
Harrison Cnty. Bd. of Supervisors, 623 F. App’x 274 (5th Cir. 2015) (per
curiam).
The case returned to district court and was referred to a magistrate
judge for consideration. There, Hale argued that his rights were violated at
the HCDC during his pretrial detention period between July 2013 and
November 2014. He claimed he was deprived of his rights under the ADA
when his custodians crushed his medication, denied him his preferred
medication, and denied him a high-protein diet.
The defendants each filed motions for summary judgment. The
magistrate judge addressed each of Hale’s many claims and recommended
the suit be dismissed in party for failure to state a claim, and that summary
judgment be entered in favor of the defendants on the remaining frivolous
claims. The magistrate judge further classified Hale as an “abusive litigant”
who “utilizes the litigation process as a means to intimidate jail staff into
providing him what he wants.” Recognizing Hale’s two prior strikes under
28 U.S.C. § 1915(g) for frivolous filings, and the frivolity of the instant case,
the magistrate judge recommended the imposition of a third-and-final strike
under § 1915(g). The district court adopted the magistrate judge’s report and
recommendation, granted the defendants summary judgment, dismissed the
action with prejudice, and imposed a third strike under § 1915(g).
Hale filed a timely notice of appeal and requested leave to proceed
IFP. A judge of our court granted Hale’s motion to proceed IFP because it
was unclear that all of Hale’s claims had been dismissed as frivolous,
malicious, or for failure to state a claim. See Hale v. Harrison Cnty. Bd. of
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Supervisors, No. 17-60246, ECF No. 75, at 2 (5th Cir. Sept. 4, 2019). Our
review is de novo. Morrow v. Meachum, 917 F.3d 870, 874 (5th Cir. 2019).
II.
After a careful review of the record, we conclude that the district court
dismissed Hale’s entire action as frivolous, malicious, or for failing to state a
claim. The magistrate judge’s report and recommendation concludes: “It is
recommended that the summary judgment motions of all Defendants be
granted and Hale’s suit dismissed as frivolous and for failure to state a claim.”
(Emphasis added). The district court then adopted the magistrate’s report as
“as the opinion of this Court.” This perfectly parrots and hence plainly
satisfies the text of § 1915(g), which permits a strike where the action “was
dismissed on the grounds that it is frivolous, malicious, or fails to state a claim
upon which relief may be granted.” We therefore could revoke Hale’s IFP
status and dismiss his appeal as barred by the PLRA’s three-strikes provision.
See Banos v. O’Guin, 144 F.3d 883 (5th Cir. 1998) (per curiam) (revoking IFP
status and dismissing an appeal after finding that the district court
appropriately imposed a final § 1915(g) strike); Taylor v. LeBlanc, 851 F.
App’x 502, 502 (5th Cir. 2021) (per curiam) (same).
We recognize, however, that a single phrase of the district court’s
decretal language introduced an ambiguity. In it, the district court suggested
that “certain claims” in Hale’s complaint satisfied § 1915(g)—thus making
it at least conceivable that others did not satisfy § 1915(g). As we’ve held, a
district court can impose a strike where the entire action is frivolous or fails to
state a claim. See Brown v. Megg, 857 F.3d 287, 290–91 (5th Cir. 2017). We
therefore gave Hale the benefit of the doubt and allowed him to proceed IFP
to raise the issue(s) that the district court did not unambiguously dismiss as
frivolous or for failure to state a claim.
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Three months after we granted him IFP status, however, Hale filed
his appellate brief and abandoned everything but a single ADA claim that the
district court plainly and unambiguously dismissed as frivolous and for failure
to state a claim. He abandoned everything else—including anything that
could conceivably constitute a nonfrivolous appellate issue. We’ve reviewed
the ADA claim that he did raise and agree with the district court that it’s
frivolous. †
†
“A plaintiff states a claim for relief under Title II [of the ADA] if he alleges:
(1) that he has a qualifying disability; (2) that he is being denied the benefits of services,
programs, or activities for which the public entity is responsible, or is otherwise
discriminated against by the public entity; and (3) that such discrimination is by reason of
his disability.” Hale v. King, 642 F.3d at 499. But Hale fails on all three prongs.
First, Hale’s does not suffer from an “impairment” that “substantially limits a
major life activity.” E.E.O.C. v. Chevron Philips Chem. Co., 570 F.3d 606, 614 (5th Cir.
2009). Hale expresses fear that crushing his medication could harm his liver, and that denial
of a high-protein diet could undermine his liver’s functioning but “merely having an
impairment . . . does not make one disabled for the purposes of the ADA,” much less does
the ADA cover fear of future impairments. Ibid.
Second, Hale cannot show that he experienced discrimination on the basis of his
hepatitis-C status. Hale argues that that the prison’s refusal to prescribe his preferred
medication, crushing his medication, denial of a high-protein diet, and denial of multiple
antacid pills per day amounted to intentional discrimination. But “[t]he ADA is not
violated by a prison’s simply failing to attend to the medical needs of its disabled
prisoners,” Nottingham v. Richardson, 499 F. App’x 368, 377 (5th Cir. 2012), because
“[t]he ADA does not set out a standard of care for medical treatment,” Walls v. Tex. Dep’t
of Crim. Justice, 270 F. App’x 358, 359 (5th Cir. 2008) (per curiam). See Olmstead v. L.C.
ex rel Zimring, 527 U.S. 581, 603 n.14 (1999). Hale does not come close to showing that the
prison’s treatment of his hepatitis-C status constitutes disability discrimination.
And last, Hale fails to show that any discrimination was intentional. Hale admits
that the denial of his requested accommodations meant he was treated the same as
“everybody.” That admission is fatal to his discrimination claim because the ADA is not
violated where the denial of an accommodation “d[oes] not create a situation where
disabled individuals ha[ve] an unequal ability to use and enjoy the facility compared to
individuals who do not have a disability.” Providence Behavioral Health v. Grant Rd. Pub.
Utility Dist., 902 F.3d 448, 459 (5th Cir. 2018).
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Therefore, Hale is BARRED from proceeding IFP in any civil action
or appeal filed in a court of the United States while he is incarcerated or
detained in any facility unless he is under imminent danger of serious physical
injury. See 28 U.S.C. § 1915(g).
STRIKE IMPOSED; APPEAL DISMISSED.
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