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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 19-14262
Non-Argument Calendar
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D.C. Docket No. 4:19-cv-00095-HLM
WILLIE FRANK WRIGHT, JR.,
Plaintiff - Appellant,
versus
WARDEN KEVIN SPRAYBERRY,
DEPUTY WARDEN BLACK,
COUNSELOR HAROLD,
Defendants - Appellees.
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Appeal from the United States District Court
for the Northern District of Georgia
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(June 2, 2020)
Before GRANT, LUCK, and LAGOA, Circuit Judges.
PER CURIAM:
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Willie Frank Wright, Jr. (“Wright”), a Georgia prisoner proceeding pro se,
appeals the district court’s order dismissing without prejudice his 42 U.S.C. § 1983
civil rights complaint against prison officials at Hays State Prison (“Hays”) for
allegedly denying him adequate medical care. The district court dismissed Wright’s
complaint, concluding that Wright did not meet the “imminent danger of serious
physical injury” exception to the “three strikes” provision of the Prison Litigation
Reform Act (“PLRA”), 28 U.S.C. § 1915(g). Because Wright’s complaint
sufficiently demonstrated that he was in imminent danger of serious physical injury
when he filed suit, we vacate the dismissal and remand for further proceedings
consistent with this opinion.
I. FACTUAL AND PROCEDURAL HISTORY
On May 13, 2019, Wright filed a pro se § 1983 complaint against the warden
of Hays, Kevin Sprayberry (“Warden Sprayberry”); the deputy warden, Mr. Black
(“Deputy Warden Black”); and a prison grievance counselor, Ms. Harold
(“Counselor Harold”). Wright alleged that, before he was transferred to Hays, he
was incarcerated at Valdosta Annex, where prison guards informed certain inmates
that he was a “snitch.” As a result, Wright alleged that a prison guard broke his hand
and rebroke a finger and inmates stabbed him in the arm.
Wright was then transferred to Hays. Wright alleged that when he arrived at
Hays, he informed both Warden Sprayberry and Deputy Warden Black “about what
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was going on.” In response, Warden Sprayberry and Deputy Warden Black stopped
his medication, including stomach medication, Bactrim, and “800 mg IBU’s,” which
Wright took for another injury. Beyond giving him an icepack, the medical staff at
Hays refused to give him medication for his open stab wounds and broken hand and
finger. A nurse told Wright to fill out a sick call form. Wright subsequently filled
out three health services request forms, which Wright attached as exhibits to his
complaint. In his health services request forms, Wright sought medical treatment
for his stab wounds and broken hand and finger, as well as for a deep vein thrombosis
(“DVT”) outbreak due to a lack of medication. Wright sought dental treatment for
a “serious painful gum infection,” which made it hard to eat and required extraction
of several teeth. Wright also requested the refill of four kinds of medication—IBU
800, blood pressure medication, Bactrim, and triamcinolone. The medical staff did
not respond to his requests for treatment and medication, and, at most, saw him only
for blood pressure checks. His gum infection spread, and, as a result, several of his
teeth still need to be extracted. Because he did not receive medication for DVT, he
developed leg sores. He also was not treated for his open stab wounds and broken
hand. Although Wright attempted to file grievance forms many times, Counselor
Harold did not accept any of Wright’s grievance forms.
Wright’s complaint sought “proper medical care,” injunctive relief, and
monetary damages. While Wright failed to identify a specific constitutional
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violation, we construe his claim as one asserting deliberate indifference under the
Eighth Amendment. Wright also requested leave to proceed in forma pauperis.
The case was referred to a magistrate judge. The magistrate judge issued a
report and recommendation recommending that pursuant to 28 U.S.C. § 1915(g),
commonly referred to as the “three strike” provision, Wright could not proceed in
forma pauperis because he had filed three or more prior cases while incarcerated
that were dismissed as frivolous, malicious, or for failure to state a claim. See §
1915(g). The magistrate judge identified the following cases that had been
dismissed on these grounds: Wright v. Trammell, No. 5:18-CV-0027-MTT-CHW
(M.D. Ga. Mar. 9, 2019); Wright v. Core Civic’s Policy, No. 6:17-CV-0027-JRH-
RSB (S.D. Ga. May 26, 2017); Wright v. McGriff, No. 5:16-CV-0134-CAR-MSH
(M.D. Ga. July 1, 2016); Wright v. Massey, No. 5:11-CV-0491-MTT (M.D. Ga. Dec.
28, 2011); and Wright v. Shelton, No. 5:10-CV-246-MTT-CWFI (M.D. Ga. July 16,
2010). The magistrate judge further found that Wright had not alleged sufficient
facts to qualify for the exception to § 1915(g)’s “three strikes” bar where the prisoner
is “under imminent danger of serious physical injury.” § 1915(g). Because Wright
could not proceed in forma pauperis, the magistrate judge recommended that the
district court dismiss Wright’s suit without prejudice.
Wright timely filed objections to the recommendation of the magistrate judge.
Wright argued that: (1) the magistrate judge lacked subject matter jurisdiction to
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issue the report and recommendation; (2) he had shown imminent danger, in light of
his physical injuries and the near complete withdrawal of medication and medical
treatment; and (3) § 1915(g) was unconstitutionally vague and violated his due
process and equal protection rights, and his right to petition the government.
The district court overruled Wright’s objections, adopted the magistrate
judge’s report and recommendation, denied Wright’s in forma pauperis application,
and dismissed Wright’s complaint without prejudice pursuant to § 1915(g). Wright
filed a notice of appeal and moved for leave to proceed in forma pauperis on appeal,
which the district court granted, finding that Wright presented a non-frivolous issue
as to whether he qualified for the imminent-danger exception to the three strikes rule
set forth in § 1915(g).
II. STANDARD OF REVIEW
This Court reviews a dismissal under § 1915(g) de novo. Mitchell v. Nobles,
873 F.3d 869, 873 (11th Cir. 2017). A constitutional challenge to § 1915(g) is also
subject to de novo review. Rivera v. Allin,
144 F.3d 719, 723 (11th Cir. 1998),
abrogated in part on other grounds by Jones v. Bock,
549 U.S. 199, 215 (2007).
Likewise, we review whether the magistrate judge had jurisdiction to issue a report
and recommendation de novo. See United States v. Ruiz–Rodriguez,
277 F.3d 1281,
1285 n.6 (11th Cir. 2002).
III. ANALYSIS
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Section 1915(g) of the PLRA precludes a prisoner from pursuing a civil action
in forma pauperis if he has filed at least three prior meritless complaints. The sole
exception to the three strikes provision is if “the prisoner is under imminent danger
of serious physical injury.” § 1915(g). Because Wright does not dispute that he has
three strikes under § 1915(g), he must show that he was in imminent danger of
serious physical injury at the time that he sought to file his suit in the district court.
See Brown v. Johnson,
387 F.3d 1344, 1349 (11th Cir. 2004). In determining
whether a prisoner has sufficiently demonstrated imminent danger, this Court looks
to the complaint as a whole, construes it liberally, and accepts the allegations as true.
Mitchell, 873 F.3d at 874;
Brown, 387 F.3d at 1350; see also Tannenbaum v. United
States,
148 F.3d 1262, 1263 (11th Cir. 1998) (“Pro se pleadings are held to a less
stringent standard than pleadings drafted by attorneys and will, therefore, be liberally
construed.”). The issue is not whether each specific physical condition or symptom
complained of might constitute serious injury, but, rather, whether the complaint, as
a whole, raises sufficient allegations.
Mitchell, 873 F.3d at 874.
For example, in Brown, a prisoner filed a § 1983 action against prison officials
alleging deliberate indifference to his serious medical needs based on a withdrawal
of his HIV and hepatitis
medication. 387 F.3d at 1346. He alleged that, as a result
of the withdrawal of treatment, he was “suffering from prolonged skin infections,
severe pain in his eyes, vision problems, fatigue, and prolonged stomach pains.”
Id.
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He further alleged that his health would continue to deteriorate and he would die
sooner because of the withdrawal of his treatments.
Id. at 1347. He sought to
proceed in forma pauperis in the district court, but the district court dismissed his
complaint without prejudice, concluding that Brown could not proceed in forma
pauperis “based on the ‘three strikes’ rule of section § 1915(g).”
Id. at 1348. On
appeal, this Court determined that Brown had sufficiently alleged imminent danger
of serious physical injury where his complaint, “[l]iberally construed, . . . alleges a
total withdrawal of treatment for serious diseases, as a result of which he suffers
from severe ongoing complications, is more susceptible to various illnesses, and his
condition will rapidly deteriorate.”
Id. at 1350.
Similarly, in Mitchell, a pro se prisoner filed a § 1983 complaint alleging
deliberate indifference to his serious medical needs where prison officials failed to
provide him medication or treatment for his hepatitis C and, as a result, he had begun
to develop
cirrhosis. 873 F.3d at 871, 874. The district court found that Mitchell
“failed to satisfy the imminent-danger exception to the three strikes provision,”
denied Mitchell’s motion to proceed in forma pauperis, and dismissed his complaint.
Id. at 873. This Court reversed, holding that Mitchell’s complaint, “when construed
liberally, . . . alleged ‘a total withdrawal of treatment . . . , as a result of which he
suffers from severe ongoing complications’” such that it fell “within the imminent-
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danger exception to the three strikes provision.”
Id. at 874 (second omission in
original) (quoting
Brown, 387 F.3d at 1350).
On appeal, Wright argues that the district court erred in finding that he was
not under imminent danger of serious physical injury. Wright also asserts that the
magistrate judge lacked subject matter jurisdiction to issue the report and
recommendation because Wright did not consent to the matter being before a
magistrate judge. Finally, Wright claims that § 1915(g) unconstitutionally abridges
his rights to petition the government and to due process. The government has not
responded.
As an initial matter, we can quickly dispose of two of Wright’s arguments.
Wright’s assertions regarding the constitutionality of § 1915(g) are foreclosed by
precedent, as this Court has previously held that § 1915(g) does not violate a
prisoner’s right of access to the courts or due process rights.
Rivera, 144 F.3d at
732; see Cargill v. Turpin,
120 F.3d 1366, 1386 (11th Cir. 1997) (stating that “only
the Supreme Court or this court sitting en banc can judicially overrule a prior panel
decision”). Wright’s argument that the magistrate judge lacked subject matter
jurisdiction to issue the report and recommendation without his consent is also
without merit. Consent of the parties is required under 28 U.S.C. § 636(c)(1) where
a magistrate judge “conduct[s] any or all proceedings in a jury or nonjury civil matter
and order[s] the entry of judgment in the case.” Here, the magistrate judge’s action
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was not taken under § 636(c)(1), but rather, under § 636(b)(1)(B), which authorizes
a magistrate judge to submit to a district court “proposed findings of fact and
recommendations for . . . disposition” and does not require the consent of the parties.
See § 636(b)(1)(B); see also McCarthy v. Bronson,
500 U.S. 136, 140–42 (1991)
(holding that § 636(b)(1)(B) allows nonconsensual referral to magistrate judges to
enter reports and recommendations on all “actions for monetary or injunctive relief
under 42 U.S.C. § 1983”). Thus, Wright’s consent was not required for the
magistrate judge to issue the report and recommendation.
We agree with Wright, however, that the district court erred when it dismissed
Wright’s complaint under the “three strikes” rule because he met the imminent-
danger exception to the rule. Wright’s complaint, which we liberally construe,
alleges that Warden Sprayberry and Deputy Warden Black deprived him of his
medication upon arrival at Hays, and that the medical staff at Hays failed to treat
him for open wounds, a broken hand, and a gum infection. At most, he has been
seen for blood pressure checks. Wright’s allegations are similar to the withdrawal
of medication and treatment at issue in Brown and Mitchell. See
Brown, 387 F.3d
at 1346–47;
Mitchell, 873 F.3d at 874. Like the prisoners in Brown and Mitchell,
who alleged the withdrawal of medication and medical treatment for serious
conditions causing severe ongoing complications, Wright has alleged a near total
withdrawal of medical care, and he has further alleged that he has developed a gum
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infection requiring dental extractions and leg sores from DVT, has untreated, open
wounds, and has not received medication for any of these serious conditions.
Because Wright in his complaint sufficiently alleged an imminent danger of serious
physical injury at the time he filed his complaint, the district court erred in dismissing
the complaint.
Our analysis does not end here, however, as this Court’s precedent mandates
that we also determine whether the district court’s dismissal may be affirmed on the
alternative basis that the allegations in Wright’s complaint fail to state a claim for
deliberate indifference.
Brown, 387 F.3d at 1351 (“The determination that Brown
alleged imminent danger of serious physical injury does not end our inquiry. We
may affirm the district court on any ground that finds support in the record. If
Brown’s amended complaint fails to state a claim for deliberate indifference, then
the dismissal of the amended complaint must be affirmed.” (citation omitted));
Mitchell, 873 F.3d at 875–76 (stating that where the district court erred in dismissing
Mitchell’s complaint on the basis that it failed to satisfy the imminent-danger
exception to the three strikes provision, this Court “must still decide whether his
complaint states a claim for deliberate indifference to serious medical needs,”
because “[i]f it does not, then we would be required to affirm the dismissal of his
complaint on that ground”).
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First, we must consider whether Wright states a valid claim under the Eighth
Amendment as “deliberate indifference to [the] serious medical needs of prisoners
constitutes the ‘unnecessary and wanton infliction of pain’ . . . proscribed by the
Eighth Amendment.”
Brown, 387 F.3d at 1351 (quoting Estelle v. Gamble,
429 U.S.
97, 104 (1976)). “To show that a prison official acted with deliberate indifference
to serious medical needs, a plaintiff must satisfy both an objective and a subjective
inquiry.”
Id. (quoting Farrow v. West,
320 F.3d 1235, 1243 (11th Cir. 2003)). The
objective inquiry requires that the prisoner show “an objectively serious medical
need.”
Id. A serious medical need is “one that has been diagnosed by a physician
as mandating treatment or one that is so obvious that even a lay person would easily
recognize the necessity for a doctor’s attention.”
Farrow, 320 F.3d at 1243 (quoting
Hill v. Dekalb Reg’l Youth Det. Ctr.,
40 F.3d 1176, 1187 (11th Cir. 1994)). If left
unattended, it poses a substantial risk of serious harm.
Brown, 387 F.3d at 1351.
To satisfy the subjective requirement, a prisoner “must prove that the prison
official acted with deliberate indifference” to the serious medical need.
Id.
Deliberate indifference requires a prisoner to “prove three facts: (1) subjective
knowledge of a risk of serious harm; (2) disregard of that risk; and (3) by conduct
that is more than mere negligence.”
Id. Deliberate indifference includes “(1) grossly
inadequate care; (2) a decision to take an easier but less efficacious course of
treatment; and (3) medical care that is so cursory as to amount to no treatment at all.
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. . . A complete denial of readily available treatment for a serious medical condition
constitutes deliberate indifference.” Bingham v. Thomas,
654 F.3d 1171, 1176 (11th
Cir. 2011).
We conclude that affirmance based on failure to state a claim is not warranted
here. First, we find that “even a lay person would easily recognize the necessity”
for medical attention to open stab wounds, open leg sores caused by untreated DVT,
and gum disease that makes it hard to eat and requires teeth extraction. Second,
Wright alleges that he told Warden Sprayberry and Deputy Warden Black “about
what was going on” when he arrived at Hays, and that they stopped his medication
and did not treat his stab wounds or broken hand. Wright subsequently filled out
three health services request forms requesting medical and dental treatment for his
open wounds, leg sores as a result of his DVT, and gum infection, but has not
received any medical or dental treatment other than blood pressure checks. “Taking
the allegations in the complaint as true,” we find that the denial of treatment of
Wright’s serious medical needs constitutes a claim for deliberate indifference and
therefore we decline to affirm on this alternative basis.
Brown, 387 F.3d at 1351.
Because we find that Wright’s complaint alleged that he was in imminent
danger of serious physical injury under 28 U.S.C. § 1915(g) and that Wright’s
complaint stated a claim of deliberate indifference under the Eighth Amendment, we
vacate the district court’s order dismissing Wright’s complaint and remand this
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action for further proceedings. We note that in concluding that Wright’s complaint
was improperly dismissed, we express no opinion as to the ultimate merits of
Wright’s claims.
VACATED and REMANDED.
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