United States District Court, S.D. Mississippi, Southern Division
ANDREW CLINTON CRUSE, Jr. #384608 PLAINTIFF
CORRECTIONAL MEDICAL ASSOCIATES, et al. DEFENDANTS
REPORT AND RECOMMENDATION
C. GARGIULO UNITED STATES MAGISTRATE JUDGE
matter is before the Court sua sponte pursuant to 28
U.S.C. § 1915. Plaintiff Andrew Clinton Cruse, Jr., a
pro se prisoner, filed his civil rights complaint
pursuant to 42 U.S.C. § 1983 on February 26, 2016, and
was granted in forma pauperis status pursuant to 28
U.S.C. § 1915 on March 23, 2016. (ECF No. 1); (ECF No.
6). It has come to the attention of the undersigned that
plaintiff has, on not less than three occasions while
detained, brought a civil action or appeal under § 1915
that has been dismissed as frivolous, malicious, or for
failure to state a claim upon which relief may be granted.
For the reasons stated below, and in accordance with 28
U.S.C. § 1915(g), the undersigned recommends that
Plaintiff's in forma pauperis status be revoked,
and that Plaintiff be ordered to pay the filing fee.
is no absolute right to proceed in forma pauperis.
Flowers v. Turbine Support Div., 507 F.2d 1242, 1244
(5th Cir. 1975). Under the Prison Litigation Reform Act
(PRLA), a prisoner is afforded three “strikes”
for the filing of lawsuits found to be frivolous, malicious,
or noncognizable before the privilege to proceed in
forma pauperis (IFP) will be revoked, special
circumstances notwithstanding. 28 U.S.C. § 1915(g)
provides in pertinent part,
In no event shall a prisoner bring a civil action or appeal a
judgment in a civil action or proceeding under this section
if 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 injury.
prisoner receives a strike anytime he or she receives a
qualifying dismissal from any court, regardless of whether
the dismissal is subject to a pending appeal. Coleman v.
Tollefson, 135 S.Ct. 1759, 1761, 1765 (2015).
Fifth Circuit, once a prisoner receives a third strike, his
or her IFP status may be immediately revoked, even amidst a
pending case. See Davis v. Granger, No.
2:12-cv-1746, 2015 WL 1800251 (W.D. La. Apr. 15, 2015);
McGrew v. Barr, No. 3:10-272, 2011 WL 1107195 (M.D.
La. Mar. 22, 2011); but see Brown v.
Timmerman-Cooper, Nos. 2:10-CV-283, 2:10-CV-352,
2:10-CV-967, 2011 WL 1429078, at *2 (S.D. Ohio Apr. 14,
2011), report and recommendation adopted, No.
2:10-CV-283, 2011 WL 1740706 (S.D. Ohio May 4, 2011). The
district court decisions in Davis v. Granger and
McGrew v. Barr relied upon the Fifth Circuit's
decision in Adepegba v. Hammons, which determined
that “[t]he ‘three strikes' provision merely
codifies an existing practice in the courts designed to
prevent prisoners from abusing the i.f.p. privilege.”
103 F.3d 383, 387 (5th Cir. 1996). Indeed, “[b]efore
the PLRA, courts routinely revoked a prisoner's ability
to proceed i.f.p. after numerous dismissals.”
Id. Thus, “[b]y adding section 1915(g),
Congress determined that three qualifying dismissals
constituted per se abuse of the i.f p. procedures.”
Adepegba Court also concluded that 28 U.S.C. §
1915 “is a procedural statute, ” neither
affecting a prisoner's substantive rights nor blocking
his or her access to the courts. Id. at 386. This is
because “[a] prisoner may still pursue any claim after
three qualifying dismissals, but he or she must do so without
the aid of the i.f.p. procedures.” Id.
Requiring a plaintiff to pay the filing fee is therefore
“neither novel nor penal.” Id. at 387.
Cruse recently received a strike on September 16, 2016 with
the dismissal of his case in Cruse v. Brisolara,
1:15-cv-172-RHW (S.D.Miss. Sept. 16, 2016), appeal
dismissed No. 1-16-60649 (5th Cir. Dec. 8, 2016), for
failure to state a claim upon which relief could be granted.
He has at least two prior strikes resulting from Cruse v.
Pope, 1:97-cv-501-WJG (S.D.Miss. Mar. 31, 1999)
(dismissing for failure to state a claim upon which relief
could be granted), and Cruse v. Lowe's Home Centers,
Inc., 1:98-cv-128-DCB (S.D.Miss. Apr. 16, 1998)
(dismissing for failure to state a claim upon which relief
could be granted). Mr. Cruse has proven himself to be a
frequent filer; his other lawsuits have been dismissed in
Cruse v. Gautier Police Dep't, 1:91-cv-79-DCB
(S.D.Miss. Feb. 2, 1993), in Cruse v. Pope,
1:98-cv-127-WJG (S.D.Miss. Sept. 27, 1999), on interlocutory
appeal in Cruse v. Pope, 99-60044 (5th Cir. Apr. 12,
1999), and on interlocutory appeal from the instant case in
Cruse v. Correctional Medical Assoc, 16-60624 (5th
Cir. Oct. 10, 2016). The undersigned finds that Plaintiff has
received at least three strikes against him; he has therefore
abused the privilege to invoke IFP status by having filed so
many meritless lawsuits and appeals. Unless Mr. Cruse is
under imminent danger of serious physical injury, his
“IFP status should be revoked even though the final
strike was declared after he filed this litigation.”
Davis, 2015 WL 1800251, at *3.
using the term ‘imminent, ' Congress indicated that
it wanted to include a safety valve for the ‘three
strikes' rule to prevent impending harms, not those harms
that had already occurred.” Malik v. McGinnis,
293 F.3d 559, 563 (2d Cir. 2002) (quoting Abdul-Akbar v.
McKelvie, 239 F.3d 307, 315 (3d Cir. 2001)). Thus, the
imminent danger exception only applies to danger existing at
the time the complaint is filed. Baños v.
O'Guin, 144 F.3d 883, 884 (5th Cir. 1998). The
exception does not apply in the case at bar.
Complaint (ECF No. 1), Mr. Cruse seeks $6, 000, 000.00 in
damages for pain and suffering related to delayed and
inadequate medical care. Plaintiff later supplemented his
complaint to also request injunctive relief in addition to
monetary damages, such as court-ordered treatment and court
monitoring of the jail. (ECF No. 8, at 1-2). First, Cruse
asserts that he had been dealing with hip pain originating
before his most recent arrest, that his hip and leg were not
medically examined for thirteen months, and that he has not
received the preferred treatment for his hip and leg
conditions. (ECF No. 90, at 10-13). Second, he claims that he
did not receive recommended surgery to remove two hernias
from his gastrointestinal tract after they were discovered on
a CT scan he received while in the hospital for having
suffered a heart attack. Id. at 14-16. Third, he
alleges that Dr. Todd Coulter misdiagnosed him with Hepatitis
C back in 2006 or 2007 when he was serving a different prison
sentence, and it led him to limit his sexual encounters to
only individuals with Hepatitis C because of Mississippi
state law. Id. at 18-20; (ECF No. 8, at 6, 8).
Fourth, he claims that he has received inadequate medical
treatment for whatever medical condition has led fluid to
accumulate in his legs. (ECF No. 90, at 20-22). Fifth, and
finally, he complains of unsanitary conditions in the
Harrison County Adult Detention Center, such as the presence
of mold and dust mites throughout the facility. Id.
his conclusory assertions that Defendants “know they
are creating a substantial risk of bodily harm” (ECF
No. 1, at 5), Cruse acknowledges that he has, in fact,
received substantial medical care, see, e.g., (ECF
No. 90, at 33-44, 50-57, 60-69), and, at his omnibus hearing
on August 18, 2016, he rated his hip and leg pain at a three
on a scale of one to ten. (ECF No. 90, at 62). Cruse has not
alleged any danger of serious physical injury, and even if he
could show some serious physical injury, it would be from
past events, not impending harm. He is therefore not entitled
to proceed in forma pauperis. Adepegba, 103
F.3d at 387.
the undersigned recommends (1) that Mr. Cruse's in
forma pauperis privilege be revoked, and (2) that Mr.
Cruse be ordered to pay the requisite filing fee to the Clerk
of Court no later than thirty (30) days from the day that any
order revoking his IFP status becomes final. Further, it is
recommended that Plaintiff be warned that failure to timely
pay any required filing fee ...