Mark Richard Still v. Steven Crawford , 105 F. App'x 128 ( 2004 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 04-1404
___________
Mark Richard Still, *
*
Appellant, *
* Appeal from the United States
v. * District Court for the Eastern
* District of Missouri.
Steven Crawford, M.D.; Correctional *
Medical Services; Charlene Counts, * [UNPUBLISHED]
R.N., *
*
Appellees. *
___________
Submitted: June 29, 2004
Filed: July 28, 2004
___________
Before MORRIS SHEPPARD ARNOLD, SMITH, and COLLOTON, Circuit Judges.
___________
PER CURIAM.
Mark Richard Still, a Missouri inmate, appeals the district court’s dismissal of
his 42 U.S.C. § 1983 action for maliciousness, and moves for leave to proceed in
forma pauperis (IFP) on appeal. Although Mr. Still is subject to the three-strikes bar
under 28 U.S.C. § 1915(g), we find his allegations that his degenerative disc and back
diseases are worsening, causing him to be in pain and have limited activities and
capabilities, and that he is at risk for disc rupture and partial paralysis if he does not
receive medical treatment are sufficient to invoke the imminent-danger exception.
Thus, we grant him IFP status, leaving the fee collection details to the district court
in accordance with 28 U.S.C. § 1915(b). We also reverse and remand.
When Mr. Still filed the instant section 1983 complaint, he indicated that he
had not begun any other civil actions in state or federal court that dealt with the same
facts involved in the instant action, or otherwise relating to his confinement.
However, on his IFP application (submitted at the same time), he indicated that he
had brought eleven prior cases while incarcerated or detained, and that these eleven
cases had been dismissed for frivolousness, maliciousness, or failure to state a claim.
He also submitted a list of these eleven cases, noting that a district court clerk had
compiled the list at his request. Defendant Dr. Steven Crawford moved to dismiss the
action for maliciousness, contending that a previous district court action of Mr. Still’s
had been dismissed for maliciousness because Mr. Still had failed to disclose prior
cases in his complaint, and that in the instant case Mr. Still had not disclosed his prior
litigation history in his complaint either. The district court dismissed the action with
prejudice, stating that Mr. Still had given “no indication whatsoever of any previous
cases,” and finding that his failure to do so was an intentional misrepresentation and
was in bad faith.
We assume, because the district court did not so state, that the dismissal was
under 28 U.S.C. § 1915(e)(2)(B)(i) (court shall dismiss IFP case at any time if court
determines that action is frivolous or malicious), and we conclude that the district
court abused its discretion in dismissing the case, see Denton v. Hernandez, 504 U.S.
25, 33-34 (1992) (standard of review). We respectfully disagree with the district
court’s finding that Mr. Still’s complaint contained intentional misrepresentations
about his prior litigation history. When Mr. Still filed his complaint and moved for
IFP status, he submitted a list of his prior eleven cases, and he resubmitted this list
after defendant moved to dismiss. Even if his representation on the form complaint
(that he had no prior cases) could be viewed as misleading and inaccurate, the
simultaneously submitted IFP application (noting eleven prior cases) and the
-2-
litigation-history list clarified his answer. Further, we see no harm in Mr. Still’s not
informing the court or defendant, in his complaint, of the full extent of his prior
litigation: the court already knew Mr. Still had at least three “strikes” under
section 1915(g) and granted him leave to file the complaint IFP anyway; there was
no dispute about whether Mr. Still’s prior cases related to the instant claims; and
defendant had not moved to dismiss the instant action on claim- or issue-preclusion
grounds. Cf. Wright v. Sargent, 869 F.2d 1175, 1176 (8th Cir. 1989) (per curiam) (in
assessing whether dismissal with prejudice under Fed. R. Civ. P. 41(b) is appropriate
sanction, court considers egregiousness of plaintiff’s conduct and its adverse effect
on defendant and administration of justice).
Accordingly, we reverse and remand for further proceedings.
______________________________
-3-