Smith v. Wang , 370 F. App'x 377 ( 2010 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-7924
JOHNATHAN LEE SMITH, a/k/a Johnathan L. X. Smith, a/k/a
Johnathan Lee X Smith,
Plaintiff - Appellant,
v.
LAWRENCE WANG, M.D.; A. GILES, Nurse; P. MCHALKO, Nurse; D.
GILES, Nurse; C. WATSON, Unit Manager; M. SMITH, Sergeant of
Security; J. LUTHER, Officer; K. UNDERWOOD, Officer; J.
MORRISON, Officer; P. PAGET, Officer; J. BRUMFIELD, Officer;
S. FARMER, Rehabilitation Counselor; V. BRYON,
Rehabilitation Counselor; JEFFREY DILLMAN, Warden; JOHN
GARMAN, Regional Director,
Defendants - Appellees.
Appeal from the United States District Court for the Western
District of Virginia, at Roanoke. Samuel G. Wilson, District
Judge. (7:09-cv-00370-sgw-mfu)
Submitted: February 24, 2010 Decided: March 17, 2010
Before NIEMEYER, MOTZ, and KING, Circuit Judges.
Vacated and remanded by unpublished per curiam opinion.
Johnathan Lee Smith, Appellant Pro Se.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Johnathan Lee Smith, a Virginia inmate, appeals a
district court order dismissing his civil rights complaint
without prejudice for failing to prepay the filing fee or show
that he was under imminent danger of serious physical injury.
Because we find Smith adequately alleged he was in imminent
danger of serious physical injury, we vacate the court’s order
and remand for further proceedings.
Under the Prison Litigation Reform Act of 1996
(“PLRA”), Pub. L. No. 104-134, 110 Stat. 1321-71 (1996), a
prisoner who has had three or more actions or appeals dismissed
as frivolous, malicious, or for failure to state a claim upon
which relief may be granted, may not proceed without prepayment
of fees unless he is under “imminent danger of serious physical
injury.” 28 U.S.C. § 1915(g) (2006). Several circuit courts
have held “the requisite imminent danger of serious physical
injury must exist at the time the complaint or the appeal is
filed . . . . Moreover, the exception focuses on the risk that
the conduct complained of threatens continuing or future injury,
not on whether the inmate deserves a remedy for past
misconduct.” Martin v. Shelton, 319 F.3d 1048, 1050 (8th Cir.
2003) (citations omitted); see also Abdul-Akbar v. McKelvie, 239
F.3d 307, 314 (3d Cir. 2001); Medberry v. Butler, 185 F.3d 1189,
1193 (11th Cir. 1999); Banos v. O’Guin, 144 F.3d 883, 885 (5th
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Cir. 1998). An appellate court reviews de novo a district
court’s interpretation of § 1915(g) and related legal
conclusions. Andrews v. King, 398 F.3d 1113, 1118 (9th Cir.
2005); Ciarpaglini v. Saini, 352 F.3d 328 (7th Cir. 2003).
Smith alleged in his complaint that Dr. Wang knowingly
failed to schedule him for a follow-up scan to determine whether
what was observed in a prior scan was stable or growing,
suggesting the presence of a tumor. He also faulted the
remaining Defendants for exposing him to second-hand cigarette
smoke and for not providing reasonable medical care to treat his
medical issues, such as nose bleeds and headaches, caused by
such exposure.
Taking Smith’s allegations as true, we find he
sufficiently established he is in imminent danger of serious
physical injury. See Ciarpaglini v. Saini, 352 F.3d 328 (7th
Cir. 2003) (complications arising from a switch in medication);
McAlphin v. Toney, 281 F.3d 709, 710 (8th Cir. 2002) (mouth
infection due to lack of dental care); Gibbs v. Cross, 160 F.3d
962, 965-66 (3rd Cir. 1988) (headaches and other symptoms as a
result of dust and lint exposure).
Accordingly, because we find Smith sufficiently
alleged in his complaint that he was under imminent danger of
serious physical injury, we vacate the district court’s order
and remand with instructions that Smith be permitted to proceed
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under the PLRA without prepayment of fees. We dispense with
oral argument because the facts and legal contentions are
adequately presented in the materials before the court and
argument would not aid the decisional process.
VACATED AND REMANDED
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