from the United States District Court for the Southern
District of Mississippi
STEWART, Chief Judge, and HIGGINBOTHAM and COSTA, Circuit
COSTA, Circuit Judge.
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.
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.
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.
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.
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
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
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
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.
agree that Brown's claims ...