United States District Court, E.D. Arkansas, Pine Bluff Division
PROPOSED FINDINGS AND RECOMMENDATION
following Recommendation has been sent to United States
District Judge James M. Moody Jr. You may file written
objections to all or part of this Recommendation. If you do
so, those objections must: (1) specifically explain the
factual and/or legal basis for your objection, and (2) be
received by the Clerk of this Court within fourteen (14) days
of this Recommendation. By not objecting, you may waive the
right to appeal questions of fact.
Michael Perry, an inmate at the Arkansas Department of
Corrections' (ADC) Maximum Security Unit (MSU), filed a
pro se complaint pursuant to 42 U.S.C. § 1983
on March 11, 2019 (Doc. No. 2). Although Perry is a
three-striker under the Prison Litigation Reform Act (PLRA),
the Court found that his complaint allegations met the
imminent danger exception to the three-strikes rule and
granted his motion to proceed in forma pauperis
(IFP). See Doc. No. 6. The Court ordered service of
Perry's complaint on Rory Griffin and several medical
providers at the MSU (the “Defendants”). See
Id. Perry's claims against the ADC and Rory Griffin
have been dismissed. See Doc. Nos. 3, 29, 30 &
37. The Defendants filed a motion to revoke Perry's IFP
status, asserting that Perry's medical records
demonstrate that he was not in fact in imminent danger of
serious physical injury when he filed his complaint (Doc. No.
44-45). Perry filed a response (Doc. No. 50).
medical records indicate that he has a non-healing ulcerated
wound on the mid tibia of his right lower extremity. Doc. No.
44-1 at 1. Perry claims that doctors at the University of
Arkansas for Medical Sciences (UAMS) directed his dressings
to be changed on a daily basis. Doc. No. 2 at 12-13. Perry
alleges that the Defendants' failure to provide daily
dressing changes causes his wound to stay infected.
Id. at 10. Perry sought a temporary restraining
order requiring the Defendants to change his leg dressing on
a daily basis and to provide medication that does not contain
aspirin. Doc. No. 4 at 6. Perry's motion for temporary
restraining order was denied. See Doc. Nos. 43 &
53. The Court found that Perry had not shown a threat of
irreparable harm because his medical records demonstrated
that his leg was not infected and he was receiving medical
treatment for and education about his leg wound. Id.
The Court also found that Perry had been advised to keep the
leg wound uncovered and not pick on it so that a scab may
form and heal. Id.
the three-strikes provision of the PLRA, the Court must
dismiss a prisoner's in forma pauperis
action at any time, sua sponte or upon a motion of a
party, if it determines that the prisoner has
on 3 or more prior occasions, while incarcerated or detained
in any facility, brought an action or appeal in a court of
the United States that was dismissed on the grounds that it
is frivolous, malicious, or fails to state a claim upon which
relief may be granted, unless the prisoner is
under imminent danger of serious physical
28 U.S.C. § 1915(g) (emphasis added). The U.S. Court of
Appeals for the Eighth Circuit has explicitly upheld the
constitutionality of the three-strikes provision. See
Higgins v. Carpenter, 258 F.3d 797 (8th Cir. 2001).
has at least three strikes. Records in the office of the
Clerk of Court for the Eastern District of Arkansas reveal
that Perry has strikes in the following cases: Perry v.
Norris, et al., No. 5:97-cv-00461 (dismissed for failure
to state actionable claim); Perry v. Pridgeon, et
al., 5:96-cv-00327 (same); Perry v. Norris, et
al., No. 5:95-cv-00641 (same). Perry does not dispute
that he has more than three strikes. See Doc. No.
three-striker, Perry must show that he was in imminent danger
of serious physical injury at the time he filed the complaint
(i.e., March 2019). 28 U.S.C. § 1915(g);
Ashley v. Dilworth, 147 F.3d 715, 717 (8th Cir.
1998). The Eighth Circuit has clarified that the imminent
danger exception applies only when there is a genuine risk of
an “ongoing serious physical injury.” Martin
v. Shelton, 319 F.3d 1048, 1050 (8th Cir. 2003) (holding
that the imminent danger exception did not apply when a
prisoner was forced to work outside in extreme weather
conditions that did not result in any serious physical
injuries). See also Ashley, 147 F.3d at 717 (holding
that the imminent danger exception applied when prison
officials continued to place a prisoner near his enemies who
had previously stabbed him); McAlphin v. Toney, 281
F.3d 709, 710-11 (8th Cir. 2002) (holding that the imminent
danger exception applied where inmate alleged deliberate
indifference to his serious medical needs that resulted in
five tooth extractions and a spreading mouth infection
requiring two additional extractions).
clear that Perry disagrees with the medical treatment he has
received in the past and is receiving now. However, the only
issue before the Court is whether Perry was in imminent
danger of serious physical injury at the time he filed his
complaint in March 2019. If so, he may proceed with those
claims directly relating to his alleged imminent danger
without paying the full filing fee. Perry maintains that his
medical records do not support revoking his IFP status.
Id. at 2. He also claims that he needed another
surgery after filing this lawsuit, id. at 5, but he
does not specifically describe why he needed that surgery or
how he was in imminent danger at the time he filed the
lawsuit. Perry attaches multiple affidavits to his response
stating that he was denied dressing changes and pain
medication in May and June of 2019. Id. at 7-20.
medical records support Defendants' argument that Perry
has received appropriate medical care for his conditions and
was not in imminent danger of serious physical injury when he
filed this lawsuit. Doc. No. 44. The Court previously
described the records relating to Perry's wound treatment
from May 25, 2018, through April 20, 2019. See Doc.
No. 43 at 2-3. Between May 2018 and January 2019, Perry was
provided pain medication, scheduled for a surgery consult,
and seen by doctors at UAMS. Id. He was repeatedly
instructed not to pick at the wound. Id. In January
2019, Perry refused pain medication because he only wanted
Gabapentin. Doc. No. 44-1 at 5. No. infection was noted at
that time. Id.
next submitted a health services request related to his leg
wound on March 7, 2019, the day after he signed his
complaint. Doc. No. 44-1 at 6. Perry was examined by a nurse
the next day and referred to a provider. Id. at 7.
The nurse examining Perry on March 8 noted that Perry walked
into the infirmary with no trouble, had no fever, and had
normal skin color. Id. The nurse also noted that
Perry's leg wound was moist, pink, and covered by
Vaseline gauze with no drainage. Id. On March 12,
2019, Perry refused a sick call encounter. Id. at
9-10. Perry claims that he refused that sick call encounter
because he knew that staff would only prescribe medication
containing aspirin when Gabapentin is the only effective
medication that he can take. See Doc. No. 50 at 3-4
(referring to Doc. No. 49). On March 20, 2019, Perry saw a
provider and declined all nonsteroidal anti-inflammatory pain
medications. Doc. No. 44-1 at 11. He was prescribed
Nortriptyline. Id. There were no signs or symptoms
of infection at that time. Id. On April 3, 2019, the
medical record indicates that “[i]nmate remains non
compliant with wound care, he has been advised to leave wound
open to air but unrelenting with covering non healing scabbed
wound area, making it moist.” Id. at 12. Perry
was instructed to take medications as prescribed and advised
to leave the wound open to air. Id. The wound showed
no signs or symptoms of infection at that time. Id.
An orthopedic consult was scheduled for April 9, 2019.
was not in imminent danger of serious physical injury when he
commenced this action on March 11, 2019. His medical records
show that he was receiving medical treatment on a regular
basis, and his leg was not infected. Perry has provided no
evidence to contradict the information in his medical
records. Because Perry's medical records show that he was
not in imminent danger of serious physical injury ...