United States District Court, S.D. Mississippi, Southern Division
ANDREW CLINTON CRUSE, JR. PLAINTIFF
CORRECTIONAL MEDICAL ASSOCIATES, ET AL. DEFENDANTS
ORDER ADOPTING REPORT AND RECOMMENDATION, REVOKING
IFP STATUS, AND REQUIRING PAYMENT OF FILING FEE
GUIROLA, JR. CHIEF U.S. DISTRICT JUDGE
THE COURT is the  Report and Recommendation of United
States Magistrate Judge John C. Gargiulo entered in this
action of December 14, 2016. Plaintiff Andrew Clinton Cruse,
Jr., a pro se prisoner, filed this action pursuant
to 42 U.S.C. § 1983. Cruse has alleged unconstitutional
denial of medical care and various other constitutional
Report and Recommendation, Judge Gargiulo determined that
Plaintiff Cruse, who was granted in forma pauperis
(IFP) status on March 23, 2016, “has, on not less than
three occasions while detained, brought a civil action or
appeal under [28 U.S.C.] § 1915 that has been dismissed
as frivolous, malicious, or for failure to state a claim upon
which relief may be granted.” (Rep. & Rec. 1). As a
result, Judge Gargiulo recommended to this Court that
Plaintiff Cruse's IFP “status be revoked, and that
Plaintiff be ordered to pay the filing fee.”
Plaintiff Cruse timely filed his  Objection to the
Report and Recommendation, the Court reviews the objected-to
portions of that Report and Recommendation de novo.
See Kreimerman v. Casa Veerkamp, S.A. de C.V., 22
F.3d 634, 646 (5th Cir. 1994); Longmire v. Guste,
921 F.2d 620, 623 (5th Cir. 1991). Such a review means that
the Court will consider the record which has been developed
before the Magistrate Judge and make its own determination on
the basis of that record. See, e.g., United
States v. Raddatz, 447 U.S. 667, 675 (1980). The Court
has conducted the required review and finds that Plaintiff
Cruse's IFP status should be revoked and that Cruse must
pay the required filing fee. Failure to timely pay the filing
fee will result in immediate dismissal of this action.
Prison Litigation Reform Act (PLRA) provides that a
prisoner's privilege to proceed IFP is denied if he has
on three prior occasions during detention had an action or
appeal dismissed as frivolous, malicious, or for failing to
state a claim. 28 U.S.C. § 1915(g). Excepted from this
bar are cases in which “the prisoner is under imminent
danger of serious physical injury.” Id. The
Court considers all actions which were dismissed as
frivolous, malicious, or which failed to state a claim,
whether dismissed before or after enactment of the PLRA.
Adepegba v. Hammons, 103 F.3d 383, 386 (5th Cir.
Denial of IFP status under the three strikes provision is a
matter[ ] of procedure. Section 1915(g) does not affect a
prisoner's substantive rights, and it does not block his
. . . access to the courts. A prisoner may still pursue any
claim after three qualifying dismissals, but he . . . must do
so without the aid of the i.f.p. procedures. . . . Prisoners
who are not allowed to proceed i.f.p. may pursue their
substantive claims just as anyone else by paying the filing
fee. This requirement is neither novel or penal. It does not
increase a prisoner's liability, but merely puts
prisoners who abuse a privilege on the same footing as
Id. at 386-87; see also Polanco v. Hopkins,
510 F.3d 152, 156 (2d Cir. 2007) (“As an initial
matter, we note that [IFP] status is not a constitutional
right, but rather a congressionally created benefit which can
be extended or limited by Congress.”) (citation and
quotation marks omitted).
Magistrate Judge found that Plaintiff Cruse has received a
qualifying “strike” in the following cases:
1:97cv501, 1:98cv128, and 1:15cv172, which was dismissed
during the pendency of this action. In his Objection, Cruse
attempts to argue the merits of those cases, but does not
contest that he was, in fact, assessed a strike in each. The
Court has conducted its own review and also finds that Cruse
has received three strikes. The Court further agrees with
other courts in this Circuit, relying on Adepegba,
that even where a prisoner's third strike comes during
the pendency of a case - such as here - his IFP status may be
immediately revoked upon receipt of the the third strike.
See, e.g., 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).
this Court must determine whether Cruse qualifies for the
imminent danger exception to the three strikes rule.
“[A] prisoner with three strikes is entitled to proceed
with his action . . . only if he is in imminent danger at the
time that he seeks to file his suit in district court or . .
. files a motion to proceed IFP.” Banos v.
O'Guin, 144 F.3d 883, 884 (5th Cir. 1998).
“Further, ‘[b]y 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)).
the Magistrate Judge, this Court concludes after a de
novo review of the record that Cruse does not qualify
for the imminent danger exception. Nonetheless, the Court has
also carefully considered the arguments made in Cruse's
objection, including the evidence he has submitted (much of
which he has previously submitted in various filings).
evidence of medical complaints made in 2015 relates to
alleged past harms, and does not show that Cruse is currently
under imminent danger of serious physical injury, or that he
was in such danger at the time he filed his Complaint and
moved to proceed IFP. See, e.g., Malik, 293
F.3d at 563. Additionally, Cruse's conclusory assertions
that “he has been made sick and . . . has life
threatening fluid on his body that can . . . kill him because
of [his] chronic C.O.P.D.” and that he is purposefully
being “over medicated with Ibruprofen”,
(see Obj. 3, ECF No. 114), are insufficient.
See, e.g., Warren v. Ellis Cty., 519 F. App'x
319, 320 (5th Cir. 2013); see also Avrie v. Tanner,
518 F. App'x 304, 305 (5th Cir. 2013) (“Although he
apparently disagrees with the course of his treatment, there
is nothing to suggest that [the plaintiff prisoner]'s
medical conditions place him in imminent danger of serious
physical injury.”); Edmond v. Tex. Dep't of
Corr., 161 F.3d 8, *3 (5th Cir. 1998) (“We find
that [the plaintiff prisoner's] complaints about the
quality of his medical care are insufficient to meet the
threshold requirement of imminent danger of physical
further argues that the jail where he is housed is
“unsafe” and, as examples, states that he
“has chronic C.O.P.D. and is housed in a medical zone
that the roof has leaked for over a (1) one year
period” and that “the ceiling is embedded with
black mold inwhich [sic] is very dangerous to
Plaintiff because of [his] chronic C.O.P.D. disease.”
(See Obj. 4, ECF No. 114). He also attaches a record
of an October 16, 2016, emergency room visit for “COPD
exacerbation.” (See ECF No. 114-2 at p.25).
However, there is nothing in the record which shows that the
exacerbation was related to mold or other alleged conditions
at the jail. In any event, the Court agrees with other courts
that “have found similar allegations to be insufficient
to overcome the application of the Three Strikes Rule.”
See Cardona v. Bledsoe, No. 3:CV-11-0054, 2011 WL
1832777, at *6 (M.D. Pa. May 12, 2011); see also,
e.g., Pol ...