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Brown v. Megg

United States Court of Appeals, Fifth Circuit

May 15, 2017

EDDIE JOSEPH BROWN, Plaintiff - Appellant
v.
APRIL MEGG; DR. RON WOODALL; WEXFORD HEALTH, Defendants-Appellees

         Appeal from the United States District Court for the Southern District of Mississippi

          Before STEWART, Chief Judge, and HIGGINBOTHAM and COSTA, Circuit Judges.

          GREGG COSTA, Circuit Judge.

         Under the Prison Litigation Reform Act (PLRA), a third strike bars a prisoner from proceeding in forma pauperis unless "the prisoner is under imminent danger of serious physical injury." 28 U.S.C. § 1915(g). A strike issues when a prisoner's action is dismissed as frivolous, malicious, or for failure to state a claim. Id. When the action is dismissed entirely on one of these grounds, the strike inquiry is easy enough. But what of an action that is dismissed partly on section 1915(g) grounds and partly on other grounds? This case poses that question as some of Eddie Brown's allegations were dismissed for failure to state a claim while others were adequately pleaded but failed at summary judgment. We affirm those merits rulings but conclude that a strike does not issue when only some claims are dismissed on section 1915(g) grounds.

         I.

         Brown suddenly began experiencing severe stomach pain on July 14, 2014. With the help of inmates and prison staff, he submitted a request for medical attention. Brown was taken to the infirmary, operated by Wexford Health, where he was seen within a couple hours by Dr. Ron Woodall.

         Brown asserts that Woodall was hostile and dismissive of his complaints, purportedly telling Brown "he was full of shit." But he admits that Woodall ordered an x-ray and blood work, both of which produced normal results. Brown further concedes that Woodall prescribed him zantac and a gastrointestinal cocktail. These medications treat conditions, like ulcers, that may cause a person's stomach to produce too much acid. Brown was discharged from the infirmary the same day.

         Brown alleges that over the next two weeks he was incessantly in pain and made various unanswered requests to see doctors. Supporting Brown's account are three affidavits by inmates who purport to have seen Brown in pain and helped him make requests for medical attention. Brown also offers forms requesting treatment dated July 18, 21, 23, and 25. None but the last form, however, are marked received by medical staff.

         Defendants deny knowledge of any such requests. Woodall says there is no record of any sick call request between July 14 and July 29 and that he never refused to see or treat Brown. April Meggs, the nurse in charge of staffing for Wexford, states that she never saw Brown as a patient nor was she ever responsible for his health.

         Brown next visited the infirmary on July 29. Dr. Charmaine McCleave ordered an x-ray, IV fluids, and blood work. Brown's x-ray again indicated no abnormalities. The next day, however, after again examining Brown and reviewing his lab results, McCleave transferred Brown to a hospital. There it was discovered that Brown had a hole in his stomach, caused by an ulcer, which was allowing acids to secrete into his internal tissue. Brown successfully underwent corrective surgery.

         Brown was discharged and returned to prison with instructions to take pain medications for up to ten days, as necessary, and to discontinue the use of zantac. Woodall and McCleave gave him pain medications for fifteen days. Brown's medical records reflect that the doctors reduced the potency of Brown's pain medications as his pain subsided. The doctors did not, however, discontinue Brown's zantac prescription.

         Brown brought this section 1983 lawsuit against Woodall, Meggs, and Wexford, alleging they were deliberately indifferent to his serious medical condition. In a single order, the magistrate judge rejected all of Brown's claims. The order held that the allegations against Meggs in her supervisory capacity and against Wexford for the acts of its employees failed to state a claim. It also granted summary judgment finding insufficient evidence to support the claims against Woodall and the contention that Meggs was responsible for the delay in his treatment. Because some of Brown's allegations were dismissed for failure to state a claim, the court assessed a section 1915(g) strike.

         II.

         We agree that Brown's claims ...


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