BLD-289 and BLD-290                                     NOT PRECEDENTIAL

                  UNITED STATES COURT OF APPEALS
                       FOR THE THIRD CIRCUIT
                            ___________

                                 No. 16-4135
                                 ___________

                             ALTON D. BROWN,
                                         Appellant

                                       v.

     TOM WOLF; JOHN E. WETZEL; DANIEL BURNS; ROBERT GILMORE;
  DEPUTY DIALESANDRO; MAJOR LEGGETT; MIKE ZAKEN; A. J. MORALS;
      SGT. TROUT; SGT. TIKEY; CAPT. SCHRADER; MICHAEL TROYAN;
LT. MEDVIC; CAPT. DURCO; S. SILBAUGH; C.O. KELLER; C.O. E.T. GUMBERT;
     TRACY SHAWLEY; DEAN GEEHING; KAREN PATTERSON; JAYME E.
  GARDNER; DORINA VARNER; CORRECT CARE SOLUTIONS; B. JIN; IRMA
     VIHLIDAL; DR. PARK; DR. ALPERT; DR. MALHI; LT. STICKLES; C.O.
 MIHALSKY; K. PETTY;NIURSE J. WATSON; NURSE WHITMEYER; FELTON;
 TODD H. FUNK; NEDRA GREGO; MARGARET GORDAN; JOHN MCANANY;
    CHRISTOPHER H. OPPMAN; KYLE GUTH; S. LIBERATORE; B. JORDAN;
              DR. CARL KELDIE; C.O. AMHOFF; PHARMACIST
                  ____________________________________

                On Appeal from the United States District Court
                   for the Western District of Pennsylvania
                        (D.C. Civil No. 2-16-cv-01081)
                   District Judge: Honorable Cathy Bissoon
                 ____________________________________

                    Submitted for Possible Summary Action
               Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6

                                 ___________

                                 No. 16-4136
                                 ___________

                             ALTON D. BROWN,
                                         Appellant
                                             v.

         WEXFORD HEALTH SOURCES, INC.; CORIZON HEALTH, INC.;
        CORRECT CARE SOLUTIONS, LLC; DR. B. JIN; MS. E. MWAURA;
          PAUL DASCANI; JAWAD A. SALAMEN; ESTHER L. MATTES;
        JOHN N. ROBINSON; TYSON D. GILLMEN; CHRISTINA B. DOLL;
        RONALD A. LONG; ROB PRICE; DEB CUTSHALL; W. A. MYERS;
              P. HALLWORTH; FELIPE ARIAS; JULIE KNAVER;
             MYRON STANISHESKI; M. MCDONALD; R. BLATT;
             RICHARD STEFANIC; V. CAPONE; LISA GONZALEZ;
             DOCTOR PARK; J. BEABOUT; SUSAN LIGHTBOURN;
            JACK ZIMMERLY; J. DEFRANGESCO; RAY MACHAK;
                C. AGRA; STEPHEN KAMINSKY; C. KEPHART
                   ____________________________________

                     On Appeal from the United States District Court
                        for the Western District of Pennsylvania
                             (D.C. Civil No. 2-16-cv-00627)
                        District Judge: Honorable Cathy Bissoon
                      ____________________________________

                        Submitted for Possible Summary Action
                   Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
                                     June 22, 2017

          Before: AMBRO, GREENAWAY, JR. and SCIRICA, Circuit Judges

                             (Opinion filed: August 7, 2017)
                                       _________

                                        OPINION *
                                        _________

PER CURIAM




*
 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
                                              2
         Alton D. Brown, an inmate at SCI-Greene, appeals from two orders denying his

applications to proceed in forma pauperis (“IFP”) in connection with two complaints he

filed in the United States District Court for the Western District of Pennsylvania.

         Because Brown has at least “three strikes” under 28 U.S.C. § 1915(g), he can

proceed IFP only if he is “under imminent danger of serious physical injury.” § 1915(g);

see also Abdul-Akbar v. McKelvie, 239 F.3d 307, 312 (3d Cir. 2001) (en banc). In each

case here, the Magistrate Judge determined that Brown had not shown that he was in

imminent danger of serious physical injury, and the District Court adopted the Magistrate

Judge’s Report and Recommendation over Brown’s objections. 1 As we conclude that the

District Court erred in determining that Brown was not under imminent danger of serious

physical injury at the time he filed his complaints, 2 we will summarily vacate the District

Court’s decisions and remand for further proceedings. 3


1
  We granted Brown the privilege of proceeding IFP on appeal, finding that he had shown
that he was in imminent danger of serious physical injury in his filings here. Brown
argues that our IFP decision is dispositive of the issues on appeal. But we must decide
whether the District Court abused its discretion based on the information that it had in
making the decisions.
2
    There is no question that Brown qualifies financially to proceed IFP.
3
  We have jurisdiction under 28 U.S.C. § 1291 to review the ruling denying IFP status,
see Abdul-Akbar v. McKelvie, 239 F.3d 307, 311 (3d Cir. 2001) (en banc), and our
review is for abuse of discretion, see Jones v. Zimmerman, 752 F.2d 76, 78 (3d Cir.
1985). “A district court abuses its discretion when its decision rests upon a clearly
erroneous finding of fact, an errant conclusion of law or an improper application of law to
fact.” Hagan v. Rogers, 570 F.3d 146, 152 (3d Cir. 2009) (internal quotation marks
omitted). Summary action is appropriate when no substantial issue is raised on appeal.
See 3d Cir. L.A.R. 27.4; 3d Cir. I.O.P. 10.6.
                                              3
       A.     D.C. Civil No. 16-cv-01081

       The complaint that Brown sought to file in D.C. Civil No. 16-cv-01081 concerned

his medical treatment at SCI-Greene for prostate issues. Brown alleged that test results

indicated that he had prostate cancer, but that the doctor suggested a prostate biopsy

before treatment would commence. Brown’s complaint stated that he requested the

following in order to make an informed decision:

       (i) access to his medical record; (ii) access to his medical books; (iii) access
       to the law library computer (to conduct medical research); and (iv)
       protection from the continuous abusive attacks he had been subjected to by
       retaliating security and medical staff since his 5/11/15 incarceration at SCI-
       Greene (said attacks are also partially motivated by racial hate.)

Complaint at ¶ 10. The Magistrate Judge found, and the District Court agreed, that

Brown’s “own submissions demonstrate that he has repeatedly refused medical care

offered by the Defendants to treat his prostate cancer,” and that it thus was Brown’s “own

refusal to obtain treatment—and not any actions by the Defendants—that has placed

[Brown] in ‘imminent danger.’” Dist. Ct. Order, Dkt. #8 at 1-2.

       We agree with the District Court that an inmate should not be able to consciously

create the situation that places him in imminent danger. But here, Brown alleged that he

was refusing treatment because he is not being given enough information to allow him to

give his informed consent. Brown noted that “Appellees ha[ve] offered to treat the

cancer, but first want to conduct a prostate biopsy, which is an invasive diagnostic

procedure.” Brown argued that he has a right under Department of Corrections policy,

state law, and the U.S. Constitution “to such information as is reasonably necessary to
                                              4
make an informed and prudent decision to accept or reject proposed treatment, as well as

a reasonable explanation of the viable alternative treatments that can be made available,

in accordance with state law and health codes, and prison rules and regulations.”

Complaint at ¶ 23. He alleged that he has been denied such information because of the

Appellees’ desire to punish him on account of his litigious behavior. As exhibits to his

complaint and his objections to the Magistrate Judge’s report, Brown provided copies of

several grievances he had filed in his attempts to gain access to his medical records. He

also complained about what he characterized as falsification of his records—although the

records stated that he was refusing treatment, he stated that in reality he was exercising

his right of informed consent before making a decision regarding the proposed care.

       Brown alleged that Appellees’ failure to provide him with adequate information

has “resulted in his inability to be treated, or make an informed decision of whether to

accept or reject the diagnostic/treatment offered.” Brown alleged that his condition is

“worsening at a rapid pace,” referring to worsening Prostate-Specific Antigen (“PSA”)

scores, 4 and stated that the “cancer is causing pain, suffering, mental anguish, and stress.”

Brown’s complaint alleged that “he has been exhibiting signs of cancer since his housing

at SCI-Greene, including substantial and continuous weight loss, bleeding from penis and


4
  Brown’s complaint alleged that his PSA scores went from 3.69 in November 2006
(under 4.0 is generally regarded as normal) to 11.66 in August 2011, 15.43 in January
2012, and 57.65 in April 2016. According to the National Cancer Institute, “[i]n general,
. . . the higher a man’s PSA level, the more likely it is that he has prostate cancer,” and a
“continuous rise in a man’s PSA level over time may also be a sign of prostate cancer,”
although there are various factors unrelated to cancer that might cause a man’s PSA to
                                              5
rect[um], and involuntary ejections of waste and blood from his rect[um] and penis.”

Complaint at ¶ 15.

       “Prisoners have a right to such information as is reasonably necessary to make an

informed decision to accept or reject proposed treatment, as well as a reasonable

explanation of the viable alternative treatments that can be made available in a prison

setting.” White v. Napoleon, 897 F.2d 103, 113 (3d Cir. 1990); see also Pabon v. Wright,

459 F.3d 241, 249 (2d Cir. 2006) (adopting holding in White). Further, at the IFP stage,

courts generally accept the litigant’s claims as true, although “they may in fact be bogus,”

as “§ 1915(g) is not a vehicle for determining the merits of a claim.” See Ciarpaglini v.

Saini, 352 F.3d 328, 330, 331 (7th Cir. 2003); Andrews v. Cervantes, 493 F.3d 1047,

1055 (9th Cir. 2007) (“We stress at the outset that § 1915(g) concerns only a threshold

procedural question—whether the filing fee must be paid upfront or later. Separate

PLRA provisions are directed at screening out meritless suits early on. See 28 U.S.C.

§§ 1915(e)(2)(B), 1915A(b).”).

       Brown’s allegations that he has been denied information to allow him to make an

informed decision, coupled with his allegations of serious medical issues, facially show

that he was at imminent risk of serious physical injury at the time he filed the complaint.

See Ibrahim v. District of Columbia, 463 F.3d 3, 6-7 (D.C. Cir. 2006) (holding that a

serious disease, like Hepatitis C, that could result in serious harm or death, is a “serious




rise. https://www.cancer.gov/types/prostate/psa-fact-sheet.
                                            6
physical injury”); Brown v. Johnson, 387 F.3d 1344, 1350 (11th Cir. 2004) (describing

the failure to treat HIV and hepatitis as causing imminent danger of serious physical

injury); Vandiver v. Prison Health Servs., Inc., 727 F.3d 580, 587 (6th Cir. 2013)

(incremental harm resulting from failure to treat chronic condition may satisfy § 1915(g)

standard). We conclude that the District Court abused its discretion in denying Brown’s

application to proceed IFP.

       B.      D.C. Civil No. 16-cv-00627

       In D.C. Civil No. 16-cv-00627, Brown sought to file a complaint regarding

medical treatment at SCI-Greene for Hepatitis C. Brown’s complaint states that he had

previously refused treatment because of the numerous side effects of Interferon treatment.

Complaint at ¶ 19. Brown alleges that he then “decided to gamble and accept medical

treat[ment],” but his “attempts to obtain medical treatment during the past four years . . .

ha[ve] been flatly denied by Defendants . . . for non-medical reasons.” Complaint at

¶¶ 20-21. The District Court declined to accept Brown’s allegations as true, given his

frequent complaints about insufficient or inadequate medical care. Report and

Recommendation, Dkt. #2, at 5-6. But while Brown’s allegations in previous cases may

have been insufficient to show that he was in imminent danger of serious physical injury,

we conclude that the District Court abused its discretion in this case.

       Hepatitis C is a serious, potentially fatal disease. In his complaint, Brown alleges

that “[a]s a result of the Defendants’ refusal to provide comprehensive, complete, and

adequate diagnosis and treatment . . . he now suffers from intense recurring pain in the
                                              7
stomach/liver area; progressive weight lost, which has intensified since being housed at

SCI-Greene, where he has lost approximately 40 lbs since May 11, 2015; and worsening

symptoms mentioned at paragraph No. 20 (which continues).” 5 Complaint ¶ 28. These

are not trivial symptoms. And his allegation that SCI-Greene is refusing him any medical

treatment for his Hepatitis C, if true, puts Brown in imminent danger of serious physical

injury. 6 The District Court thus abused its discretion in denying Brown’s IFP motion.

       Conclusion

       For the foregoing reasons, we will vacate the District Court’s orders denying

Brown the privilege of proceeding IFP, and will remand for further proceedings. We

express no opinion as to the merit of either of Brown’s complaints.




5
  The symptoms Brown lists in ¶ 20 are “flu-like illness; headaches; indigestion; diarrhea;
liver pain; frequent urination; night sweats; depression; [and] kidney and urinary tract
complications.”
6
  We take judicial notice that the adequacy of the Pennsylvania Department of
Corrections’ Hepatitis C Treatment Protocol is at issue in a number of cases. See, e.g.,
Abu-Jamal v. Wetzel, M.D. Pa. Civ. No. 16-cv-02000, Dkt. #23, Mem. Op., at 30 (Jan.
3, 2017) (granting preliminary injunction); Chimenti v. Pa. Dep’t of Corr., E.D. Pa. Civ.
No. 15-cv-03333, Dkt. #26, Mem. Order, at 3-4 (Mar. 21, 2016) (describing allegations
that treatment protocol operated to deny any treatment to inmates with Hepatitis C
infections).
                                             8
