FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT May 23, 2017
_________________________________
Elisabeth A. Shumaker
Clerk of Court
EZEKIEL DAVIS,
Plaintiff - Appellant,
v.
GEO GROUP CORRECTIONS, INC.;
AMBER MARTIN, Vice President of GEO No. 17-6059
Group, Inc., individually and in her official (D.C. No. 5:16-CV-00462-HE)
capacity; HECTOR RIOS, JR., Warden, (W.D. Oklahoma)
individually and in his official capacity;
CHRISTINA THOMAS, Medical
Supervisor, individually and in her official
capacity; FNU GONZAGA, Medical
Doctor, individually and in his official
capacity; LT. FNU DURANT, Grievance
Coordinator, individually and in his/her
official capacity; BUDDY HONAKER,
Medical Services Admin., individually and
in his official capacity; JOE M.
ALLBAUGH, Director ODOC,
individually and in his official capacity;
DAN RONAY, Supervisor-Correct Care
Solutions, individually and in his official
capacity; JANE DOE, Director, Lawton
Foot Clinic, individually and in her official
capacity; SHERYL DENTON, Nurse
Practitioner, individually and in her official
capacity; LT. FNU DAWSON, Grievance
Coordinator; MARGO SALDANA, Law
Library C.O.; FNU CLARK, C.O. assigned
to Law Library; SGT. FNU ADAMS,
Correctional Officer; FNU COLLINS,
Warden, Law Library Supervisor; FNU
CARLISLIE, Chaplain; MARK
KNUTSON, Director Designee; JOHN
DOE, Podiatrist, Lawton Foot Clinic, in his
individual and official capacity; FNU
MUSALLAM, Physician, individually and
in his/her official capacity; FNU McGEE,
ODOC Medical Service Admin.,
individually and in his/her official capacity;
FNU MINYARD, ODOC Contract
Monitor, individually and in his/her official
capacity,
Defendants - Appellees.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before PHILLIPS, McKAY, and McHUGH, Circuit Judges.
_________________________________
Plaintiff-Appellant Ezekiel Davis, a state prisoner proceeding pro se,1 appeals
the district court’s dismissal of his 42 U.S.C. § 1983 complaint. The district court
denied Mr. Davis’s motion to proceed in forma pauperis (IFP), and dismissed his
complaint without prejudice when he failed to pay the full filing fee on time.
Exercising jurisdiction under 28 U.S.C. § 1291, we grant Mr. Davis leave to proceed
IFP on appeal, vacate the district court’s order denying IFP in that court, and remand
for further proceedings.
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Federal Rule of Appellate Procedure 32.1 and 10th Circuit Rule 32.1.
1
We construe Mr. Davis’s pro se filings liberally. See Smith v. Veterans
Admin., 636 F.3d 1306, 1310 (10th Cir. 2011).
2
BACKGROUND
Mr. Davis is a state prisoner in the custody of the Oklahoma Department of
Corrections. On May 4, 2016, he filed his § 1983 complaint in the United States
District Court for the Western District of Oklahoma, raising First and Eighth
Amendment claims. He asserted that he has been denied adequate medical treatment
by qualified personnel for severe back pain and a plantar wart, and that he has been
denied footwear with adequate arch support. He alleged that he has suffered for over
twenty-five years from back pain that causes him to be immobile for days at a time,
that his back pain significantly affects his daily activities, and that his back pain is
exacerbated by the lack of proper foot support. While Dr. Gonzaga gave him shots of
a drug called Prednisone, he contended that Dr. Gonzaga and Medical Supervisor
Christina Thomas rejected his requests to see an outside specialist. And even though
he was provided arch support insoles, the insoles were far too small for his shoes. His
requests for orthopedic shoes were also denied. Without proper medical treatment, he
maintained, he will continue to suffer and his condition will deteriorate.
Along with his complaint, Mr. Davis filed a motion to proceed in forma
pauperis. Applying the so-called “three-strike” rule under the Prison Litigation
Reform Act (PLRA), 28 U.S.C. § 1915(g), the magistrate judge recommended that
the district court deny Mr. Davis’s IFP motion and dismiss the case without prejudice
unless he paid the full filing fee. Under the three-strike rule, a prisoner who has
brought three or more civil actions that have been dismissed on the grounds that they
are “frivolous, malicious, or fail[] to state a claim upon which relief may be granted,”
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is barred from proceeding in further civil actions IFP unless he shows he “is under
imminent danger of serious physical injury.” 28 U.S.C. § 1915(g). The magistrate
judge identified three qualifying civil actions that Mr. Davis filed while incarcerated:
(1) Davis v. Moles, No. 02-CV-110 (N.D. Okla. Feb. 8, 2002) (dismissing for failure
to state a claim); (2) Davis v. Jones, No. 04-CV-819 (W.D. Okla. Aug. 24, 2004)
(dismissing without prejudice for failure to state a claim); and (3) Davis v. Ward, No.
05-CV-558 (W.D. Okla. May 11, 2006) (dismissing for failure to exhaust
administrative remedies, which at the time constituted a failure to state a claim). The
magistrate judge then found that Mr. Davis failed to show that he was in imminent
danger of suffering serious physical injury. She reasoned that his own documents
showed he could, despite his indigent status, purchase athletic shoes from the canteen
as instructed by his podiatrist, that he received silver nitrate to remove the plantar
wart, and that he received medication for his back issues. And even though Mr. Davis
insisted that he did not receive treatment from qualified medical personnel, his own
allegations reflect that defendants responded to his medical needs. The district court
adopted the magistrate judge’s recommendation, and, when Mr. Davis did not pay the
fee, dismissed the case.
On February 10, 2017, Mr. Davis filed a motion to reopen the case and to
proceed IFP, arguing that he could now meet the imminent danger exception. He
claimed that in November 2016, Dr. Musallam, who had apparently replaced Dr.
Gonzaga, diagnosed him with “lumbar and cervical degenerative disk disease with
probable spinal stenosis and radiculopathy.” Mr. Davis alleged that Dr. Musallam
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prescribed him a psychotropic drug called Trazadone, and that Ms. Thomas told Dr.
Musallam to not refer Mr. Davis to a specialist. Mr. Davis further claimed that he
still had an unremoved plantar wart. The district court ruled that these conditions do
not rise to the level of serious physical injury contemplated in § 1915(g) and denied
the motion. Mr. Davis appealed.
On March 15, 2017, we issued an order sua sponte noting Mr. Davis’s three
strikes under 28 U.S.C. § 1915(g), and directing Mr. Davis to show cause why his
appeal should not be dismissed for failure to prepay the entire filing fee as required
by § 1915(g), or why § 1915(g) does not apply to this proceeding. Mr. Davis timely
submitted a response, in which he contends he has sufficiently shown he is in
imminent danger of suffering serious physical injury and that § 1915(g) therefore
does not apply. Mr. Davis also filed an application to proceed IFP, and we issued an
order assessing fees in the form of partial payments, pending the resolution of this
appeal.
DISCUSSION
Congress designed the PLRA to control prisoner litigation. Childs v. Miller,
713 F.3d 1262, 1265 (10th Cir. 2013). To that end, the PLRA generally “requires all
prisoners appealing decisions in civil actions to pay the full amount of the filing fees”
up front. Strope v. Cummings, 653 F.3d 1271, 1273 (10th Cir. 2011). Indigent
prisoners are often exempt from this rule, and “a prisoner proceeding IFP usually
makes an initial partial payment and then pays the remainder of the filing fee in
monthly installments.” Id. But where a prisoner has previously filed three or more
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civil actions or appeals in federal court that resulted in dismissals on the grounds they
were “frivolous, malicious, or fail[ed] to state a claim upon which relief may be
granted,” 28 U.S.C. § 1915(g), the prisoner “has ‘struck out’ from proceeding IFP in
a new civil action or appeal,” Strope, 653 F.3d at 1273. See Smith v. Veterans
Admin., 636 F.3d 1306, 1309 (10th Cir. 2011) (“Under PLRA, a prisoner is barred
from bringing new civil cases or appeals in civil cases without the prepayment of
filing fees if three prior civil cases or appeals in civil cases have been dismissed as
frivolous, malicious, or for failure to state a claim.”).
To meet the only exception to the prepayment requirement, a prisoner who has
accrued three strikes must make “specific, credible allegations of imminent danger of
serious physical harm.” Hafed v. Fed. Bureau of Prisons, 635 F.3d 1172, 1179 (10th
Cir. 2011) (internal quotation marks omitted). The prisoner “should identify at least
the general nature of the serious physical injury he asserts is imminent,” and “should
make a specific reference as to which of the defendants may have denied him what
medication or treatment for what ailment on what occasion.” Id. at 1180 (internal
quotation marks omitted). “Vague and utterly conclusory assertions are insufficient.”
Id. (internal quotation marks omitted). And “allegations of past harm do not suffice;
the harm must be imminent or occurring at the time the complaint is filed.” Stine v.
U.S. Fed. Bureau of Prisons, 465 F. App’x 790, 793 (10th Cir. 2012) (unpublished)
(quoting Ciarpaglini v. Saini, 352 F.3d 328, 330 (7th Cir. 2003)); see also Hafed, 635
F.3d at 1179 (stating that “a prisoner must have alleged an imminent danger at the
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time he filed his complaint”); id. at 1180 (“An appellant should make his allegations
of imminent danger in his motion for leave to proceed ifp.”).
Mr. Davis maintains he has established he is in imminent danger of suffering
serious physical harm because Defendants have displayed a deliberate indifference
toward his serious medical needs.2 Mr. Davis contends that he has long suffered from
substantial and chronic back pain, that he cannot sit or stand for extended periods
without being in terrible pain, that he experiences a constant grinding in his neck and
popping in his back, and that his limbs go numb whenever he tries to sleep on his
side. Mr. Davis also alleges that Dr. Musallam diagnosed him with degenerative disk
disease, yet, at Ms. Thomas’s direction, would not refer him to an outside specialist
for an MRI. As a result, which of his disks are deteriorating is uncertain, the severity
of his spinal stenosis is unknown, and the extent of his radiculopathy is unclear. Mr.
Davis further alleges that the doctor told him “your [sic] just going to have [to] suffer
the pain like we all do.”
Admittedly, this is a close call. But taking Mr. Davis’s averments as true, and
giving Mr. Davis the benefit of the doubt as a pro se litigant, see Stine, 465 F. App’x
at 793–94, we conclude that he has sufficiently pled he is in imminent danger of
suffering serious physical harm. First, Mr. Davis has identified the general nature of
the serious physical injury that he asserts is imminent. He alleges that he has long
suffered from chronic and severe back pain that causes him to be immobile for long
2
Mr. Davis does not contest that he has three qualifying strikes under the
PLRA. Therefore, we confine our analysis to whether he has sufficiently alleged that
he is in imminent danger of suffering serious physical injury.
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periods and unable to sleep on his side without his limbs going numb. Indeed, Dr.
Musallam diagnosed him in November 2016 with degenerative disk disease. Second,
Mr. Davis has sufficiently referenced which defendants denied him treatment for his
ailment and on what occasion. He alleges that neither Dr. Gonzaga nor Dr. Musallam
nor Ms. Thomas permitted him to see a specialist so he could receive an MRI to
understand the true nature of his disease, thus inhibiting his ability to receive
appropriate treatment. This occurred both before and after Dr. Musallam’s diagnosis.
Mr. Davis’s repeated contention that he received inadequate treatment for his severe
back pain suggests his allegations are sufficiently credible for the purposes of
granting him leave to proceed IFP.
To be sure, Mr. Davis’s own allegations reveal that medical personnel visited
with him numerous times, and that Dr. Gonzaga gave him shots of a drug called
Prednisone while Dr. Musallam prescribed him a drug called Trazadone. And the
district court concluded that Mr. Davis’s allegations suggest prison officials were
responsive to his medical needs. But Mr. Davis alleges that Dr. Gonzaga informed
him Prednisone was bad for him, and that Trazadone is merely a psychotropic drug
with mind- and mood-altering affects. And even though prison officials may have
been responsive to Mr. Davis’s medical needs, the thrust of his allegations is that the
treatment he has received is inadequate and that he will continue to suffer debilitating
back pain unless he receives an MRI and additional medical treatment in accordance
with that examination. Mr. Davis’s allegations that Defendants have displayed a
deliberate indifference toward his serious medical needs and denied him adequate
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medical treatment are sufficient to facially establish the PLRA’s imminent and
serious danger requirement for proceeding IFP. See, e.g., Stine, 465 F. App’x at 794–
95 (concluding that a prisoner satisfied the imminent and serious danger requirement
where his allegations facially established that he would suffer from reflux of blood,
pain when he eats or talks, a reduced ability to swallow without pain, and permanent
damage to his esophagus lining if he is not provided the drug Omeprazole); Fuller v.
Myers, 123 F. App’x 365, 366–68 (10th Cir. 2005) (unpublished) (holding that a
prisoner’s assertion “that he currently suffers from breathing difficulties and other
respiratory problems, apparently exacerbated by the ventilation system where he is
incarcerated,” facially met the imminent and serious danger requirement, even though
the prisoner used an inhaler and received 600 mg of Motrin two times per day for
head pain); Brown v. Johnson, 387 F.3d 1344, 1350 (11th Cir. 2004) (finding that a
prisoner adequately alleged that he was in imminent danger of serious physical harm
where he suffered from HIV and hepatitis, and his doctor stopped his prescribed
treatment, causing him to “suffer[] prolonged skin and newly developed scalp
infections, severe pain in the eyes and vision problems, fatigue and prolonged
stomach pains”); McAlphin v. Toney, 281 F.3d 709, 710–11 (8th Cir. 2002) (holding
that a prisoner’s allegations that he needed two tooth extractions to prevent a possible
infection in his mouth were sufficient “as a matter of law” to establish that he was “in
imminent danger of serious physical injury”); Gibbs v. Cross, 160 F.3d 962, 965–66
(3d Cir. 1998) (finding that a prisoner’s allegations that “unidentified dust particles
were in his lungs and mucus, and that he [was] suffering from severe headaches,
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watery eyes, and a change in his voice as a result” of being placed in a dusty cell
were sufficient to meet the imminent danger requirement to proceed IFP).
Our conclusion that Mr. Davis facially satisfies the imminent and serious
danger requirement of § 1915(g) is not the end of the matter. On remand, the district
court may still dismiss Mr. Davis’s complaint through the screening process if it
determines that his complaint is frivolous, malicious, fails to state a claim, or seeks
monetary relief against an immune defendant. See 28 U.S.C. §§ 1915(e)(2)(B),
1915A(b); Fuller, 123 F. App’x at 367. If Mr. Davis survives the screening process,
the district court should provisionally grant IFP and proceed with service of process.
Fuller, 123 F. App’x at 367–68. Defendants may then make a factual challenge,
based on a more complete record, to the district court’s provisional determination
that Mr. Davis satisfies the imminent and serious danger requirement. Id. If
Defendants mount such a challenge, “the district court may resolve the factual issues
of imminent [and serious] danger by relying upon evidence supplied by sworn
affidavits or depositions, or, alternatively, it may hold a hearing.” Id. (internal
quotation marks omitted).
CONCLUSION
We GRANT Mr. Davis leave to proceed IFP on appeal, VACATE the district
court’s order denying IFP, and REMAND for further proceedings.
Entered for the Court
Carolyn B. McHugh
Circuit Judge
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