         Case: 15-12329   Date Filed: 05/09/2016   Page: 1 of 6


                                                      [DO NOT PUBLISH]



          IN THE UNITED STATES COURT OF APPEALS

                  FOR THE ELEVENTH CIRCUIT
                    ________________________

                          No. 15-12329
                      Non-Argument Calendar
                    ________________________

              D.C. Docket No. 3:15-cv-00394-TJC-JRK



NYKA TASSIANT O'CONNOR,

                                                        Plaintiff-Appellant,

                                versus

SUWANNEE CORRECTIONAL INSTITUTION,
CHRIS LANDRUM,
FLORIDA DEPARTMENT OF CORRECTIONS,
JULIA JONES,
NORTH, et al.,

                                                     Defendants-Appellees.

                    ________________________

             Appeal from the United States District Court
                 for the Middle District of Florida
                   ________________________

                            (May 9, 2016)
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Before TJOFLAT, HULL and MARCUS, Circuit Judges.

PER CURIAM:

      Nyka O’Connor is a Florida prison inmate incarcerated at Union

Correctional Institution (“UCI”). He brought this action pursuant to 42 U.S.C. §

1983 to recover damages on the theory that the named defendants infringed his

rights under the Fourth Amendment for excessive force and the Eighth

Amendment for inadequate medical treatment. The district court, acting sua

sponte, dismissed his complaint without prejudice pursuant to the Prison

Litigation Reform Act (“PLRA”), 28 U.S.C. § 1915(g), on the grounds that he had

sustained the dismissal of three or more qualifying lawsuits and was not imminent

danger of serious physical injury. He appeals the dismissal, arguing that he

qualified for the imminent danger exception. He also argues that the court

incorrectly denied him the ability to amend his complaint. We are not persuaded

and affirm.

                                         I.

      We review a district court’s dismissal under 28 U.S.C. § 1915(g) de novo.

Miller v. Donald, 541 F.3d 1091, 1100 (11th Cir. 2008). We liberally construe pro

se pleadings. See Brown v. Sikes, 212 F.3d 1205, 1209 (11th Cir. 2000).

      The purpose of the PLRA is to conserve judicial resources by preventing

meritless cases initiated by prisoners. Vanderberg v. Donaldson, 259 F.3d 1321,


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1324 (11th Cir. 2001). Under the PLRA, prisoners are only permitted to file three

meritless suits in in forma pauperis status. 28 U.S.C. § 1915(g). The “three

strikes” provision of the PLRA provides:

      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.

Id.

      In Medberry v. Butler, we rejected the notion that imminent danger of

serious physical injury under § 1915(g) is measured at the time of the alleged

incident, not at the time the complaint is filed. 185 F.3d 1189, 1193 (11th Cir.

1999). We noted that the Eighth Circuit requires that the prisoner be in imminent

danger at the time of the filing, meaning that a past threat of imminent danger is

insufficient, while the Fifth Circuit requires “imminent danger at the time that he

seeks to file his suit in district court or seeks to proceed with his appeal or files a

motion to proceed IFP.” Id. at 1192-93. However, we declined to decide which

approach to adopt. Id. at 1193. We held, though, that “Congress’ use of the

present tense in § 1915(g) confirms that a prisoner’s allegation that he faced

imminent danger sometime in the past is an insufficient basis to allow him to




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proceed in forma pauperis pursuant to the imminent danger exception to the

statute.” Id. at 1193.

      In Brown v. Johnson, we held that a prisoner with HIV and hepatitis faced

imminent danger when he alleged that the total withdrawal of treatment for his

conditions left him susceptible to other illnesses that could cause his condition to

quickly deteriorate. 387 F.3d 1344, 1350 (11th Cir. 2004). Although some of the

physical conditions that Brown alleged did not constitute serious injury, his

complaint as a whole successfully alleged that he faced an imminent danger of

serious physical injury because his HIV and hepatitis would lead to serious

afflictions if left untreated. Id. Furthermore, the fact that Brown’s illnesses were

already serious did not preclude him from claiming that his condition was

“worsening more rapidly as a result of the complete withdrawal of treatment.” Id.

      The district court did not err by dismissing O’Connor’s complaint pursuant

to § 1915(g), because O’Connor failed to successfully plead that he was in

imminent danger. He is currently at UCI, but all of his allegations of harm

occurred months before at Suwannee Correctional Institution (“SCI”). He did not

allege that any abuse occurred at UCI. Furthermore, unlike Brown, O’Connor did

not experience a “complete withdrawal of treatment.” Brown, 387 F.3d at 1350.

Instead, shortly before his complaint was filed, O’Connor was seen by medical

personnel at UCI multiple times and was informed that he would need surgery.


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Therefore, O’Connor’s allegations do not sufficiently plead imminent danger of

serious physical injury because a past threat of imminent danger is insufficient.

His fears that his surgery might be delayed or his symptoms would lead to cancer

were speculative and not factually supported. Additionally, O’Connor’s assertion

that the SCI staff had threatened to continue to abuse him is not an imminent

threat, because at the time of his filing, O’Connor had been transferred to UCI and

he only speculated, without alleged facts in support, that he would be transferred

back to SCI. Thus, O’Connor failed to show that he faced imminent danger due to

inadequate medical treatment or staff misconduct.

                                         II.

      We review the denial of a motion to amend a complaint for abuse of

discretion. Williams v. Bds. of Regents of Univ. Sys. of Ga., 477 F.3d 1282, 1291

(11th Cir. 2007). Federal Rule of Civil Procedure 15(a) allows that “[a] party may

amend the party’s pleading once as a matter of course at any time before a

responsive pleading is served.” Fed. R. Civ. P. 15(a). We held that “the PLRA

does not preclude the district court from granting a motion to amend.” Brown, 387

F.3d at 1349. In Brown, because Brown filed his motion to amend before his

complaint was dismissed and before any responsive pleadings were filed, it was an

abuse of discretion when the district court denied Brown’s motion. Id.




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      The district court did not abuse its discretion by denying leave to amend,

because, unlike Brown, O’Connor did not make an attempt to amend his complaint

before it was dismissed. Furthermore, his complaint was dismissed without

prejudice, which means he is free to refile, and without a filing fee, assuming he

adequately alleges imminent danger in the future. Additionally, because, as he

acknowledges, he filed a prior complaint that was dismissed without prejudice with

instructions to either allege imminent danger or pay the filing fee, this complaint

was in essence an amended complaint, and he still did not make sufficient factual

allegations to show imminent danger of serious physical injury.

      AFFIRMED.




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