United States District Court, S.D. Mississippi, Northern Division
ROGER C. JOHNSON PLAINTIFF
DR. ROLANDO ABANGAN, ET AL. DEFENDANTS
P. Jordan III CHIEF UNITED STATES DISTRICT JUDGE.
prisoner lawsuit is before the Court on the Report and
Recommendation of Magistrate Judge F. Keith Ball .
Plaintiff Roger Johnson has three strikes under the Prison
Litigation Reform Act, so he is “barred from proceeding
in forma pauperis pursuant to § 1915 while he
is incarcerated or detained in any facility unless he is
under imminent danger of serious physical injury.”
Johnson v. Lewis, 335 F. App’x 481, 483 (5th
Cir. 2009) (citing 28 U.S.C. § 1915(g)). Nevertheless,
he filed this suit in forma pauperis, claiming he
was under imminent danger of physical injury due to East
Mississippi Correction Facility’s (“EMCF”)
failure to provide adequate medical care for his asthma.
Compl.  at 11–12. As Defendants, Johnson named Dr.
Rolando Abangan and Nurse Little, who he identified as
members of EMCF’s medical staff. Id. at
filing suit in February 2017, Johnson was transferred to
Central Mississippi Correctional Facility
(“CMCF”) for a “custody upgrade.”
Johnson Mot.  at 1. And in October 2017, he was moved to
South Mississippi Correctional Institution
(“SMCI”). Johnson Am. Decl.  at 2.
Interestingly, as pointed out by Judge Ball, Johnson asked in
multiple filings to be returned to EMCF, “where there
is medical treatment for his anxiety and other mental issues
that threaten his physical health further endangering his
life.” Johnson Am. Decl.  at 2; see
Johnson Mot.  at 4 (claiming “the plaintiff is
entitled to a temporary restraining order requiring the
defendants to arrange transfer of the plaintiff to
EMCF”). Despite these transfers, the question is
whether Johnson was in imminent danger of serious physical
injury “when he filed his complaint.” Cloud
v. Stotts, 455 F. App’x 534, 535 (5th Cir. 2011)
(citing § 1915(g); Banos v. O’Guin, 144
F.3d 883, 884–85 (5th Cir. 1998)).
contend he was not and moved to dismiss his complaint or
alternatively to revoke in forma pauperis status.
They argue his allegations of delay in receiving his
breathing treatments due to understaffing do not demonstrate
imminent harm. Defs.’ Mot.  at 3. Judge Ball
agreed, finding that Johnson’s admission that he had
received treatment at EMCF, though infrequently, combined
with his request to return to that facility, warranted
revocation of his in forma pauperis status. R. &
R.  at 5.
review of Johnson’s allegations suggests that they are
better characterized as complaints regarding the frequency
and timeliness of his medical care; he has not advanced facts
that indicate he is in imminent danger. For example,
- Johnson says he has asthma and is “constantly”
refused, or made to wait for, breathing treatments. He
explains that he does “not have a rescue inhaler and
can only get breathing treatments every 4 hours.”
Compl.  at 5.
- Johnson suffered a collapsed lung in December 2016, which
necessitated a visit to the emergency room and
hospitalization. This event, which makes up the bulk of his
Complaint, occurred almost three months before filing suit.
He recovered and was returned to general population on
January 5, 2017. Id. at 5–7.
- Similarly, much of Johnson’s Complaint takes issue
with the treatment he received on January 11, 2017, more than
one month before filing suit. He claims he complained of
chest pain, but the medical unit returned him to his cell
without treatment. He came back to the medical unit later
that evening, and a nurse practitioner gave him a shot for
pain. He says that particular nurse “did not agree with
the way [he] was being treated.” Id. at
- As for his condition at the time of filing suit, Johnson
alleges that “[t]here is still a problem with getting
me to medical for breathing treatments” and he is
“still being told [to] wait until pill call” at
10:00 p.m., or sometimes midnight. Id. at 9.
Objection further supports this conclusion. Obj.  at 3
(complaining about the timeliness of treatment, such as
having to wait 5–8 hours for breathing
finding is consistent with other courts’ handling of
imminent-danger exceptions in cases of asthma or other
chronic medical conditions. For example, in Cain v.
Shilling, the court concluded the plaintiff was not in
imminent danger where he received a breathing treatment for
his asthma the day before filing suit. No. 799-CV-00898, 2001
WL 515263, at *2 (W.D. Va. Mar. 14, 2001). The court observed
that the plaintiff had “received the treatments that
are available,” even if he did not “receive the
treatment he believes is necessary.” Id. In
another asthma case, the Seventh Circuit said the
plaintiff’s “struggle to breathe” was
“a normal incident of asthma rather than a
‘serious’ incremental harm.” Sanders v.
Melvin, 873 F.3d 957, 960 (7th Cir. 2017). The court
noted that the plaintiff’s fears about a future attack
did not amount to imminent danger of serious physical injury.
Id. Likewise, the court in Oliver v. Ashby
dismissed a three-strikes prisoner’s complaints of
being denied his inhaler. No. 13-00263-KD-B, 2013 WL 6842805,
at *2 (S.D. Ala. Dec. 27, 2013). The court cited the absence
of allegations that the prisoner was “suffering any
breathing problems when he signed his complaint” or
that “he did not receive any asthma
cases, and others like them, support Judge Ball’s
finding that Johnson is not entitled to the imminent-danger
exception. See Brown v Beard, 492 F. Supp. 2d 474,
478 (E.D. Pa. 2007) (denying in forma pauperis
status where the plaintiff did not dispute he was receiving
medical attention for high blood pressure, low blood sugar,
and high cholesterol, “but merely disputed findings and
quality of treatment he is receiving”).
the Report and Recommendation  is adopted as the opinion
of the Court. Defendants’ motion  to revoke in
forma pauperis status is granted. Johnson’s in
forma pauperis status is revoked; if he wishes to
continue this lawsuit, he must pay the filing fee within
sixty days. Failure to do so will result in dismissal without
the Court finds that Johnson’s Motion for Preliminary
Injunction and TRO , which complains about conditions at
CMCF (where Plaintiff is no ...