                    United States Court of Appeals
                          FOR THE EIGHTH CIRCUIT
                                 _____________

                                 No. 01-2016EA
                                 _____________

James McAlphin,                      *
                                     *
            Appellant,               *
                                     *
      v.                             *
                                     *
                                     * On Appeal from the United
R. Toney, Warden, Varner Super       * States District Court
Max. ADC; T. Brown, Grievance        * for the Eastern District
Officer, Varner Super Max. ADC;      * of Arkansas.
Ware, Dr., Varner Super Max. ADC;    *
Erwin, Nurse, Varner Super           *
Max. ADC; and Nettles, Nurse,        *
Varner Super Max. ADC,               *
                                     *
            Appellees.               *
                                ___________

                             Submitted: December 14, 2001
                                Filed: February 20, 2002
                                 ___________

Before LOKEN, RICHARD S. ARNOLD, and BYE, Circuit Judges.
                           ___________

RICHARD S. ARNOLD, Circuit Judge.


      This case is about the interpretation of 28 U.S.C. § 1915(g), commonly known
as the “three strikes” provision. The question presented is whether plaintiff’s
complaint, considered merely as a matter of pleading, sufficiently alleged “imminent
danger of serious physical injury” within the meaning of the statute. We hold that it
did, and therefore reverse the order of the District Court, which dismissed the
complaint before service of process.

      The statute provides as follows:

             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.

28 U.S.C. § 1915(g). This provision was added by amendment in 1996. Act of April
26, 1996, Pub. L. No. 104-134, § 101(a), 110 Stat. 1321-73, 1321-74, 1321-75.

      It is not contested that the plaintiff has had his “three strikes.” As to “imminent
danger of serious physical injury,” the complaint alleges as follows (we set out the
relevant portions of the pleading exactly as written by plaintiff, who filed pro se):

             2. Plantiff was placed in VSM (a half complete unit) [the
             reference is to Varner Super Max, a unit of the Arkansas
             Department of Correction] on September 13th, 2000. And
             although plaintiff medical file indicated he needed
             imedieate dental extractions he was consistently denied this
             because there was no dental lab at VSM. Requests were
             ignored by defendants Toney and Ware.

                                      * * * *



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             5. Plaintiffs gums became so infected he eventually had to
             undergo 5 extractions — two more then originally — on
             October 19, 2000 The situation was so painful to plaintiff
             during the denial, he attempted suicide.

             6. Two of the extraction originally scheduled to over 1/2
             year during which time decay spread. At time of this
             complaint those extractions had not been made and
             plaintiff is in imminent danger of serious physical injury
             because of spreading infection in the mouth.

             7. Plaintiff herein was and is subjected to extreme pain and
             a deliberate indifference due to the delay in treatment and
             torcherous conditions imposed by defendants.

Appellee’s Separate Appendix 11-12.

        We are of course mindful of the rule that the well-pleaded allegations of a
complaint must be taken as true before the complaint can be dismissed as insufficient
on its face. E.g., Beck v. LaFleur, 257 F.3d 764, 765 (8th Cir. 2001). The complaint
in this case alleges that five extractions have already occurred, but, construed liberally
in favor of the pleader, further alleges that two extractions originally scheduled have
not occurred, and that plaintiff is in imminent danger of serious physical injury
because of spreading infection in his mouth. We hold that this allegation is sufficient
as a matter of law. (Indeed, defendants, who have filed a brief in this Court at our
invitation, agree with this conclusion.)

       Our case of Ashley v. Dilworth, 147 F.3d 715 (8th Cir. 1998) (per curiam), is
of some relevance here. In that case, the complaint was filed in 1997. It alleged that
the plaintiff had first notified defendants in 1993 that he was in danger because of
being placed near inmates on his “enemy list.” In 1996, the complaint continued, the
plaintiff actually was placed near an enemy and was stabbed. He warned defendants
again in 1997 of his placement near listed enemies, and, later that year, he was

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stabbed again. The second stabbing incident occurred on June 28, 1997, and the
complaint was filed in July of the same year. These allegations were held sufficient
to charge not only past injury, but also “an ongoing danger . . ..” Id. at 717. We
emphasized that an allegation that a plaintiff had faced imminent danger in the past
would be insufficient, but that a complaint is sufficient if it properly alleges that the
plaintiff “is in imminent danger at the time of filing.” Ibid. (emphasis in original).
The present case is analogous.              Plaintiff alleges five tooth extractions,
unconstitutionally delayed, in the past, but he also alleges that he needs two more
tooth extractions, that they are being delayed because of deliberate indifference to his
serious medical needs, and that, as a consequence, an infection is spreading in his
mouth. This allegation is sufficient. Accordingly, it was error for the District Court,
before service, to dismiss this complaint without prejudice on the basis of the three-
strikes provision. On remand, plaintiff should be allowed to proceed in forma
pauperis, at least initially, with the filing fee to be paid in installments over a period
of time. See Henderson v. Norris, 129 F.3d 481, 483 (8th Cir. 1997) (per curiam).

      We express our appreciation to appointed counsel for appellant for his services.

       Accordingly, the judgment must be reversed. The case will be remanded to the
District Court for further proceedings not inconsistent with this opinion.

      It is so ordered.

BYE, Circuit Judge, concurring in the judgment.

      I cannot accept the majority’s analogy to Ashley v. Dilworth, 147 F.3d 715 (8th
Cir. 1998) (per curiam). Ashley interpreted the “imminent danger” aspect of 28
U.S.C. § 1915(g)’s exception for suits alleging “imminent danger of serious physical
injury”: we held that a prisoner qualifies for the exception only “if he is in imminent
danger at the time of filing.” Ashley, 147 F.3d at 717 (emphasis in original). Ashley

                                           -4-
had no occasion to interpret the “serious physical injury” component of § 1915(g)
because it was obvious to everyone that the prisoner’s alleged injury was sufficiently
serious. The prisoner in Ashley alleged he had twice been attacked by a prison
enemy, once with a sharpened, nine-inch screwdriver, and later with a butcher knife.
Id. at 717. The facts of the present case, in which James McAlphin contends he has
some form of mouth infection, pale in comparison to the outrage allegedly visited
upon Ashley by prison officials.

       I tend to doubt that McAlphin’s allegations of a mouth infection constitute a
“serious physical injury.” 28 U.S.C. § 1915(g). My doubts are resolved for the
moment by the warden’s concession that McAlphin’s allegations suffice as a matter
of law to demonstrate serious physical injury. Though we might disregard the
warden’s concession, I am persuaded that the absence of an adversarial presentation
in this case prevents our thorough and much-needed exploration of the issue. The
majority wisely stops short of announcing a new test to determine when a prisoner has
suffered a “serious physical injury” and holds without elaboration that McAlphin’s
allegations suffice as a matter of law. But I fear the majority’s decision may tie our
hands in later cases (when we will have to define “serious physical injury”) by
suggesting that the seemingly minor injury McAlphin suffered is serious. Relying on
the warden’s concession, I concur only in the judgment of the court.

      A true copy.

             Attest:

                CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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