     Case: 15-60706   Document: 00513992785     Page: 1   Date Filed: 05/15/2017




          IN THE UNITED STATES COURT OF APPEALS
                   FOR THE FIFTH CIRCUIT
                                                                 United States Court of Appeals
                                                                          Fifth Circuit
                                 No. 15-60706                           FILED
                                                                    May 15, 2017

EDDIE JOSEPH BROWN,
                                                                   Lyle W. Cayce
                                                                        Clerk

             Plaintiff - Appellant

v.

APRIL MEGG; DR. RON WOODALL; WEXFORD HEALTH,

             Defendants - Appellees




                Appeal from the United States District Court
                  for the Southern District of Mississippi


Before STEWART, Chief Judge, and HIGGINBOTHAM and COSTA, Circuit
Judges.
GREGG COSTA, Circuit Judge:
      Under the Prison Litigation Reform Act (PLRA), a third strike bars a
prisoner from proceeding in forma pauperis unless “the prisoner is under
imminent danger of serious physical injury.” 28 U.S.C. § 1915(g). A strike
issues when a prisoner’s action is dismissed as frivolous, malicious, or for
failure to state a claim. Id. When the action is dismissed entirely on one of
these grounds, the strike inquiry is easy enough. But what of an action that is
dismissed partly on section 1915(g) grounds and partly on other grounds? This
case poses that question as some of Eddie Brown’s allegations were dismissed
for failure to state a claim while others were adequately pleaded but failed at
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                                   No. 15-60706

summary judgment. We affirm those merits rulings but conclude that a strike
does not issue when only some claims are dismissed on section 1915(g)
grounds.
                                      I.
      Brown suddenly began experiencing severe stomach pain on July 14,
2014. With the help of inmates and prison staff, he submitted a request for
medical attention. Brown was taken to the infirmary, operated by Wexford
Health, where he was seen within a couple hours by Dr. Ron Woodall.
      Brown asserts that Woodall was hostile and dismissive of his complaints,
purportedly telling Brown “he was full of shit.” But he admits that Woodall
ordered an x-ray and blood work, both of which produced normal results.
Brown further concedes that Woodall prescribed him zantac and a
gastrointestinal cocktail. These medications treat conditions, like ulcers, that
may cause a person’s stomach to produce too much acid. Brown was discharged
from the infirmary the same day.
      Brown alleges that over the next two weeks he was incessantly in pain
and made various unanswered requests to see doctors. Supporting Brown’s
account are three affidavits by inmates who purport to have seen Brown in
pain and helped him make requests for medical attention. Brown also offers
forms requesting treatment dated July 18, 21, 23, and 25. None but the last
form, however, are marked received by medical staff.
      Defendants deny knowledge of any such requests. Woodall says there is
no record of any sick call request between July 14 and July 29 and that he
never refused to see or treat Brown. April Meggs, the nurse in charge of
staffing for Wexford, states that she never saw Brown as a patient nor was she
ever responsible for his health.




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      Brown next visited the infirmary on July 29. Dr. Charmaine McCleave
ordered an x-ray, IV fluids, and blood work. Brown’s x-ray again indicated no
abnormalities. The next day, however, after again examining Brown and
reviewing his lab results, McCleave transferred Brown to a hospital. There it
was discovered that Brown had a hole in his stomach, caused by an ulcer, which
was allowing acids to secrete into his internal tissue. Brown successfully
underwent corrective surgery.
      Brown was discharged and returned to prison with instructions to take
pain medications for up to ten days, as necessary, and to discontinue the use
of zantac. Woodall and McCleave gave him pain medications for fifteen days.
Brown’s medical records reflect that the doctors reduced the potency of Brown’s
pain medications as his pain subsided.        The doctors did not, however,
discontinue Brown’s zantac prescription.
      Brown brought this section 1983 lawsuit against Woodall, Meggs, and
Wexford, alleging they were deliberately indifferent to his serious medical
condition. In a single order, the magistrate judge rejected all of Brown’s
claims. The order held that the allegations against Meggs in her supervisory
capacity and against Wexford for the acts of its employees failed to state a
claim. It also granted summary judgment finding insufficient evidence to
support the claims against Woodall and the contention that Meggs was
responsible for the delay in his treatment.        Because some of Brown’s
allegations were dismissed for failure to state a claim, the court assessed a
section 1915(g) strike.
                                      II.
      We agree that Brown’s claims were properly dismissed.
      Brown does not contest with much force that his allegations against
Meggs and Wexford fail to state a claim. He alleges no more than that Meggs


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and Wexford ought to be liable for the acts of their subordinates. But without
more, Meggs’s supervisory role does not make her so liable. Thompkins v. Belt,
828 F.2d 298, 303–04 (5th Cir. 1987). Wexford likewise is not automatically
liable for the acts of its employees. Kohler v. Englade, 470 F.3d 1104, 1114–15
(5th Cir. 2006) (holding that respondeat superior liability does not attach in
section 1983 claims).       And Brown does not identify any Wexford policy,
practice, or custom of ignoring sick call requests. Howell v. Town of Ball, 827
F.3d 515, 527 (5th Cir. 2016).
       As for his claims dismissed at summary judgment, 1 Brown’s proof does
not surmount the high threshold of deliberate indifference. That standard
requires showing that a prison official knew of, but disregarded, an inmate’s
serious medical need. Gobert v. Caldwell, 463 F.3d 339, 346 (5th Cir. 2006).
      Brown argues Woodall was deliberately indifferent to his needs in three
ways: (1) intentionally misdiagnosing him, (2) interfering with his postsurgery
treatment, and (3) refusing to treat him. The first two claims are belied by the
record. Woodall saw Brown, ordered x-rays and bloodwork, and, after receiving
normal results, prescribed medication to alleviate Brown’s symptoms. That
Woodall may have made a dismissive comment or gotten the diagnosis wrong
does not establish that he “refused to treat [Brown], ignored his complaints,
intentionally treated him incorrectly, or engaged in any similar conduct that
would clearly evince a wanton disregard for any serious medical needs.”
Johnson v. Treen, 759 F.2d 1236, 1238 (5th Cir. 1985). Brown’s medical records



      1 Brown alleges the district court erred by not apprising him of the summary judgment
requirements. Although courts should advise pro se prisoners of procedural rules, Davis v.
Fernandez, 798 F.3d 290, 293–94 (5th Cir. 2015), we have held that they need not be given
additional notice of the consequences of a summary judgment motion and the right to submit
opposing affidavits as the notice given by Rule 56 and the local rules suffices, Martin v.
Harrison County Jail, 975 F.2d 192, 193 (5th Cir. 1992).


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likewise reveal he continuously received the prescribed postsurgery pain
medications.    Although Woodall did erroneously continue Brown’s zantac
prescription, Brown offers no evidence suggesting that Woodall intentionally
ignored the specialist’s order to the contrary. Brown’s evidence supporting his
third allegation falls short for a different reason: it does not implicate Woodall.
Brown points generally to his requests for doctors going unanswered. But in
testimony that is not disputed, Woodall says he did not see Brown’s sick call
requests or refuse to treat him.
      The magistrate judge also correctly rejected Brown’s claims based on
doctors not being on site around-the-clock. Brown cites no authority, and we
have found none, requiring that as a general matter. What is more, Brown’s
evidence shows doctors are on site throughout the day and available by phone
at all other times when nurses are always present. See Hoptowit v. Ray, 682
F.2d 1237, 1253 (9th Cir. 1982) (en banc) (noting the Eighth Amendment
requires that prison medical staff be “able to treat medical problems or to refer
prisoners to others who can”). In any event, Brown offers no proof that he
suffered any injury as a result of doctors not being present at night.
                                       III.
      Given our agreement that it was proper to dismiss some allegations for
failure to state a claim and others at the summary judgment stage for lack of
evidentiary support, we confront the strike question posed at the outset.
      Section 1915(g) reads 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.

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28 U.S.C. § 1915(g). The statute speaks of “actions,” not “claims,” that were
dismissed as frivolous, malicious, or for failure to state a claim. The ordinary
meaning of “action” is the entire lawsuit. See FED. R. CIV. P. 2 (noting that
“[t]here is one form of action—the civil action”); FED. R. CIV. P. 3 (stating that
a civil “action” begins with the filing of a complaint); FED. R. CIV. P. 54(b)
(recognizing that an “action” may contain “more than one claim” so that “any
order . . . that adjudicates fewer than all the claims . . . does not end the
action”); see also Action, BLACK’S LAW DICTIONARY (10th ed. 2014) (defining
“action” as a “civil or criminal judicial proceeding” and noting that “[t]he terms
‘action’ and ‘suit’ are nearly if not quite synonymous” with the distinction being
that action historically refers to proceedings in courts of law and suit to those
in courts of equity).
       That the PLRA uses “action” in its ordinary sense finds support in how
the term is used elsewhere in section 1915. Section 1915(e)(2) says the court
“shall dismiss the case” notwithstanding partial payment if the “action or
appeal” is frivolous or malicious. 28 U.S.C. § 1915(e)(2). Likewise, Section
1915(f)(1) lists “action” in tandem with “suit” when discussing judgment for
costs. Id. § 1915(f)(1) (“Judgment may be rendered for costs at the conclusion
of the suit or action . . . .”).
       Consistent with this reading, many other circuits have held that a strike
issues only when the entire case is dismissed for being frivolous, malicious, or
failing to state a claim. See Thompson v. Drug Enforcement Admin., 492 F.3d
428, 432 (D.C. Cir. 2007) (“Section 1915(g) speaks of the dismissal of ‘actions
and appeals,’ not ‘claims.’”); Turley v. Gaetz, 625 F.3d 1005, 1008–09 (7th Cir.
2010) (“[W]e believe that the obvious reading of the statute is that a strike is
incurred for an action dismissed in its entirety on one or more of the three
enumerated grounds.”); Tolbert v. Stevenson, 635 F.3d 646, 651–52 (4th Cir.


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2011) (“[W]e conclude that ‘action’ in § 1915(g) unambiguously means an entire
case or suit. Therefore, § 1915(g) requires that a prisoner’s entire ‘action or
appeal’ be dismissed on enumerated grounds in order to count as a strike.”);
Thomas v. Parker, 672 F.3d 1182, 1183 (10th Cir. 2012) (same); Ellis v.
Simmons, 654 F. App’x 250, 251 (8th Cir. 2016) (same); see also Pointer v.
Wilkinson, 502 F.3d 369, 375–76 (6th Cir. 2007) (implicitly recognizing the
same).
      These courts’ reading of section 1915(g) comports with the PLRA’s effort
“to filter out the bad claims filed by prisoners and facilitate consideration of
the good.” Coleman v. Tollefson, 135 S. Ct. 1759, 1762 (2015). Allowing the
Rule 12(b)(6) dismissal of a single claim out of many—a common occurrence
even for cases with sophisticated plaintiff’s counsel in this day of Twombly and
Iqbal—to count as a strike would mean a prisoner gets a strike even when
some of the claims succeed. Thompson, 492 F.3d at 432 (“[I]t would make no
sense to say—where one claim within an action is dismissed for failing to state
a claim and another succeeds on the merits—that the ‘action’ has been
dismissed for failing to state a claim.”). Imposing a strike only when the action
itself is dismissed for one or more of the qualifying reasons is consistent with
the statute’s balance between deterring frivolous filings while maintaining
access to the courts for facially valid claims.
      Patton v. Jefferson Correctional Ctr., 136 F.3d 458 (5th Cir. 1998), poses
no obstacle to reading section 1915(g) as its language dictates. Patton was
denied in forma pauperis status for having three strikes. Id. at 461. Two of
those strikes were for actions involving a section 1983 claim that was
dismissed as frivolous and a habeas claim that was dismissed for failure to
exhaust. Id. at 462–63. In holding that dismissal of those actions counted as
strikes, we explained that when a single complaint includes both habeas claims


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                                        No. 15-60706

and civil rights claims, the district court should separate the claims and decide
the section 1983 claims. Id. at 464. In that sense, two separate actions were
at issue. Indeed, the three strikes provision does not apply to habeas actions
as they “are considered something different from traditional civil actions.”
Carson v. Johnson, 112 F.3d 818, 820 (5th Cir. 1997). Because the civil rights
portion of a complaint raising both habeas and section 1983 claims is the only
“civil action” to which section 1915(g) applies, it makes sense to impose a strike
when all the section 1983 claims in such an action are dismissed for
frivolousness. We further noted that such a rule was necessary to prevent an
end run around the PLRA as “litigious prisoners could immunize frivolous
lawsuits from the ‘three strikes’ barrier by a simple expedient of pleading
unexhausted habeas claims as components of § 1983 suits.” Patton, 136 F.3d
at 464. 2
       That same potential for abuse does not exist in a case like this one in
which some of the claims got past the pleading stage yet failed, as many
lawsuits of all types do, at summary judgment. 3 Because this “action” was not




       2  Some unpublished opinions cite Patton to impose strikes when some claims were
dismissed on section 1915(g) grounds and other civil rights claims were dismissed for failing
to exhaust administrative prison procedures. See Taylor v. Swift, 618 F. App’x 228, 228–29
(5th Cir. 2015); Espinal v. Bemis, 464 F. App’x 250, 252 (5th Cir. 2012); Sears v. Blanco, 442
F. App’x 961, 963 (5th Cir. 2011). Aside from being nonbinding, those cases are no barrier to
the general rule we recognize today. Even circuits that rely on an “end run around” rationale
to allow strikes for dismissals partly on section 1915(g) grounds and partly for failure to
exhaust civil rights claims acknowledge that strikes generally do not issue for partial
dismissals. See Thomas v. Parker, 672 F.3d 1182, 1183–84 (10th Cir. 2012) (holding that
partial dismissals are not grounds for a strike but treating “end run around” cases as
exceptions to that rule); Pointer v. Wilkinson, 502 F.3d 369, 375–76 (6th Cir. 2007) (same);
but see Turley v. Gaetz, 625 F.3d 1005, 1008–09 (7th Cir. 2010) (holding that “dismissal of an
action, in part for failure to exhaust and in part as frivolous, malicious or for failure to state
a claim does not constitute a strike under § 1915(g)”).
        3 We recognize that two unpublished opinions have imposed strikes in the situation

we face. See Foreman v. Potter, 382 F. App’x 370 (5th Cir. 2010); Walzier v. McMullen, 333
F. App’x 848 (5th Cir. 2009). But neither case provides any analysis to support that decision

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                                       No. 15-60706

“dismissed on the grounds that it is frivolous, malicious, or fails to state a
claim,” a strike should not have been imposed.
                                           ***
       We AFFIRM the judgment of the district court but VACATE the strike.




or grapples with the meaning of “action” that leads us to join all the other circuits that have
considered this question.

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