[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 11-11828 ELEVENTH CIRCUIT
Non-Argument Calendar FEBRUARY 14, 2012
________________________ JOHN LEY
CLERK
D.C. Docket No. 1:10-cv-23267-MGC
WILLIE ALBERT SMITH,
lllllllllllllllllllllllllllllllllllllll l Plaintiff-Appellant,
versus
COLONEL CLEMONS, Correctional Officer,
LT. VEAL,
SGT. R. BROWN,
SGT. FIGUROA,
SGT. EDGECOMB, et al.,
llllllllllllllllllllllllllllllllllllllll Defendants-Appellees.
________________________
No. 11-11834
Non-Argument Calendar
_________________________
D.C. Docket No. 1:11-cv-20439-UU
WILLIE ALBERT SMITH,
Plaintiff-Appellant,
versus
COLONEL CLEMONS,
SGT. FIGUROA,
SGT. E. BROWN,
SGT. CLARK,
C.O.I. HERNANDEZ,
Defendants-Appellees.
________________________
Appeals from the United States District Court
for the Southern District of Florida
________________________
(February 14, 2012)
Before CARNES, MARTIN and FAY, Circuit Judges.
PER CURIAM:
Willie Albert Smith, incarcerated and proceeding pro se, appeals the district
court’s dismissal of his civil rights complaints under the “three strikes” provision
of the Prison Litigation Reform Act (PLRA). 28 U.S.C. § 1915(g). Smith argues
that the district court erred in finding he was not in “imminent danger of serious
physical injury,” a determination that would require Smith to pay the full $350.00
filing fee if he were to re-file his complaints. See id. And relatedly, Smith argues
that the district court erred in denying as moot three motions he had pending upon
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dismissal of the case.1
We review de novo a dismissal under the PLRA’s “three strikes” provision,
28 U.S.C. § 1915(g). Miller v. Donald, 541 F.3d 1091, 1100 (11th Cir. 2008).
The “three strikes” provision “bars a prisoner, who has filed three or more
complaints that have been dismissed as frivolous or malicious or for failure to
state a claim, from filing a complaint in forma pauperis, unless the prisoner is
‘under imminent danger of serious physical injury.’” Brown v. Johnson, 387 F.3d
1344, 1349 (11th Cir. 2004) (quoting 28 U.S.C. § 1915(g)).
The magistrate judges’ reports and recommendations confirm, and Smith
does not dispute, that he qualifies as a three-striker under Section 1915(g). So, in
order to bring his claims in forma pauperis, Smith must be “under imminent
danger of serious physical injury,” including at the time he filed his complaints.
See Medberry v. Butler, 185 F.3d 1189, 1193 (11th Cir. 2004) (holding that a
three-strike prisoner was not “under imminent danger of serious physical injury”
because the threat he alleged at Everglades Correctional Institution “had ceased
1
Smith also argues that the magistrate judge erred in denying his motion to
consolidate his February 2011 case with two earlier civil rights cases, including the
September 2010 case. But Smith did not timely object to the magistrate judge’s order
denying his motion to consolidate and has, therefore, waived any objections. See Fed. R.
Civ. P. 72(a) (stating that a party “may not assign as error a defect in the order not timely
objected to”).
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prior to the filing of his Complaint”).
In determining whether a prisoner is in imminent danger, we look to the
prisoner’s complaint “as a whole,” construing it liberally and accepting his
allegations as true. Brown, 387 F.3d at 1350 (in evaluating whether prison’s
failure to treat inmate with HIV placed him in imminent danger of serious injury,
looking to the whole of his complaint by considering his allegations of current
skin and vision problems as well as the “alleged danger of more serious
afflictions” in the future).
In his initial Complaint, filed in September 2010, Smith alleged civil rights
violations by correctional officers at Everglades Correctional Institution. Among
those allegations, Smith claimed that in August 2010 Sergeant Brown punched
him in the abdomen, despite his having had hernia surgery nine days before.2
Smith initiated a separate action by filing another complaint on February 5,
2011. In that complaint, Smith alleged correctional officers’ retaliation for his
September 2010 suit. Specifically, he claimed that Sergeant Brown had repeatedly
threatened him with violence more severe than the earlier punch in the gut.
2
In his February 2011 complaint, Smith alleges that this incident took place four
days before his hernia surgery. For our purposes, the timing of this incident is equally
significant, whether it happened four days before a scheduled surgery or shortly
thereafter.
4
According to Smith, on January 9, 2011, Sergeant Brown told him that “if I do not
withdraw my lawsuit that the punch to my abdomen was just a taste of what he . . .
would do to me.” Smith also alleged that, on January 15, 2011, Sergeant Brown
called him over from the recreation line “and told me that he don’t give a fuck
about what I write up and that the day that he hit me in the abdomen was just an
example of what he can do to me and get away with it.”
The magistrate judge evaluated Smith’s September 2010 complaint on
February 10, 2011. In recommending the dismissal of that complaint, the
magistrate judge took judicial notice of the allegations in Smith’s February 2011
complaint, but concluded that “[i]t is clear that in the six months following the
filing of this [September] complaint, the plaintiff has not been placed in imminent
danger.” Over Smith’s objections, the district court adopted the recommendation
of the magistrate judge and dismissed the case. Smith’s February 2011 complaint
followed a similar course and was dismissed on March 21, 2011. These appeals
followed.
Accepting Smith’s allegations as true, and viewing them as a whole, Smith
has alleged mistreatment and the danger of more serious abuse. Cf. Brown, 387
F.3d at 1350 (finding imminent danger of serious physical injury where
mistreatment exposed prisoner to the “alleged danger of more serious afflictions”).
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Smith’s September 2010 complaint alleged that correctional officers, including
Sergeant Brown, engaged in physical violence against him. And his February
2011 complaint contained specific allegations that the physical violence would
become more dangerous: fresh threats of severe violence by the same officer,
Sergeant Brown. The court was aware of those allegations when it dismissed both
the September 2010 and the February 2011 complaints. We therefore conclude
that the allegations made in Smith’s complaints showed an “imminent danger of
serious physical injury,” at the time of filing and since, sufficient to permit his
filing these claims in forma pauperis.
In light of this conclusion, we vacate the district court’s dismissal of
Smith’s complaints under 28 U.S.C. § 1915(g), and remand for further
proceedings consistent with this opinion, including the disposition of the three
motions that were denied as moot following the dismissal of Smith’s complaints.
VACATED AND REMANDED.
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