73 F.4th 315
5th Cir.2023Background
- Pro se inmate Anthony Prescott sued five UTMB personnel under 42 U.S.C. § 1983 alleging denial of medical/dental care and related harms.
- The district court dismissed his amended complaint for failure to state a claim and on Eleventh Amendment immunity grounds, and it counted that dismissal as a § 1915(g) strike.
- Prescott had multiple prior federal dismissals (including Abbott, Pace, and Doe decisions and at least one appellate affirmance) and received warnings about accumulating strikes.
- The district court denied Prescott leave to proceed in forma pauperis (IFP) on appeal under 28 U.S.C. § 1915(g), concluding he had ≥3 strikes and did not show imminent danger.
- Prescott appealed the IFP denial to the Fifth Circuit and argued (a) strikes should not count while underlying cases are on appeal and (b) he met the imminent-danger exception based on dental problems and alleged food contamination.
- The Fifth Circuit held Prescott had accumulated more than three strikes, rejected his imminent-danger claims as speculative, denied IFP, and dismissed the appeal for failure to pay filing fees.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Prescott may proceed IFP under § 1915(g) because he has prior qualifying dismissals | Prescott: A strike issued by a district court while its case is on appeal should not be counted yet | Appellees: Strikes count for § 1915(g); district and appellate dismissals are distinct | Court: Strikes count; Prescott had more than three strikes, so IFP denied |
| Whether Prescott qualifies for the § 1915(g) "imminent danger" exception | Prescott: Ongoing denial of dental/medical care, chin fistula, recurring infection, and alleged food tampering create imminent risk | Appellees: Allegations are conclusory, speculative, and lack specific ongoing denial or contamination facts | Court: No sufficient, contemporaneous nexus or specific facts; imminent-danger exception not met |
| Whether appellate-stage dismissals and warnings change IFP analysis | Prescott: Pending appeals and warnings negate counting of strikes | Appellees: Prior district dismissals and appellate dispositions can each produce strikes | Court: Did not need to resolve Coleman open question because Prescott already had ≥4 strikes; IFP barred absent imminent danger |
Key Cases Cited
- Lomax v. Ortiz‑Marquez, 140 S. Ct. 1724 (2020) (failure‑to‑state dismissal counts as a § 1915(g) strike)
- Coleman v. Tollefson, 575 U.S. 532 (2015) (trial and appellate stages treated distinctly; a prior dismissal counts as a strike even if appealed)
- Swierkiewicz v. Sorema N.A., 534 U.S. 506 (2002) (liberal federal notice pleading standards; Rule 12(e) for more definite statement)
- Taylor v. Books A Million, Inc., 296 F.3d 376 (5th Cir. 2002) (pro se pleadings construed liberally but conclusory legal allegations insufficient)
- McGarrah v. Alford, 783 F.3d 584 (5th Cir. 2015) (both district and appellate dismissals may count as strikes)
- Black v. Warren, 134 F.3d 732 (5th Cir. 1998) (standard for reviewing IFP denial and § 1915(g) application)
- Adepega v. Hammons, 103 F.3d 383 (5th Cir. 1996) (defining imminent danger exception standard)
- Choyce v. Dominguez, 160 F.3d 1068 (5th Cir. 1998) (imminent danger must be assessed at time of IFP filing)