              Case: 17-14464     Date Filed: 02/01/2019   Page: 1 of 5


                                                             [DO NOT PUBLISH]



                IN THE UNITED STATES COURT OF APPEALS

                         FOR THE ELEVENTH CIRCUIT
                           ________________________

                                 No. 17-14464
                             Non-Argument Calendar
                           ________________________

                     D.C. Docket No. 3:17-cv-01007-TJC-JBT



NYKA TASSIANT O'CONNOR,

                                                                Plaintiff-Appellant,

                                        versus

WARDEN,
Florida State Prison - Warden,
Individually & / or Officially,
Jointly & Severally,
JULIE L. JONES,
Individually & / or Officially, Jointly &
Severally,
CENTURION,
Individually & / or officially, Jointly &
Severally,
GANZALO ESPINO,
JOHN PALMER,
Individually & / or Officially, Jointly
& Severally, et al.,

                                                             Defendants-Appellees.
              Case: 17-14464     Date Filed: 02/01/2019    Page: 2 of 5


                            _______________________

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

                                 (February 1, 2019)

Before NEWSOM, BRANCH, and JULIE CARNES, Circuit Judges.

PER CURIAM:

      Nyka O’Connor, a Florida prisoner proceeding pro se, appeals the district

court’s dismissal of his 42 U.S.C. § 1983 civil rights complaint. The district court

ruled that O’Connor failed to meet the “imminent danger” exception to the Prison

Litigation Reform Act’s “three strikes” provision, 28 U.S.C. § 1915(g), and that his

claims were duplicative of claims that he raised in another pending case.

      We review de novo the district court’s dismissal of a case pursuant to

§ 1915(g). Miller v. Donald, 541 F.3d 1091, 1100 (11th Cir. 2008) (citation

omitted). Moreover, we may take judicial notice of our own records as well as

records of inferior courts. See ITT Rayonier Inc. v. United States, 651 F.2d 343,

344–45, n.2 (5th Cir. Unit B 1981).

      We construe pro se pleadings liberally. Evans v. Georgia Reg’l Hosp., 850

F.3d 1248, 1253 (11th Cir. 2017), cert. denied, No. 17-370 (U.S. 2017). However,

liberal construction of pro se pleadings “does not give a court license to serve as de

facto counsel for a party, or to rewrite an otherwise deficient pleading in order to


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sustain an action.” Campbell v. Air Jamaica Ltd., 760 F.3d 1165, 1168–69 (11th

Cir. 2014) (citation and quotation marks omitted).

      Additionally, “it is well settled that a plaintiff may not file duplicative

complaints in order to expand their legal rights.” Vanover v. NCO Fin. Servs., Inc.,

857 F.3d 833, 841 (11th Cir. 2017) (citation and quotation marks omitted). Claim-

splitting, as this concept is known, is an offshoot of res judicata that is “concerned

with the district court’s comprehensive management of its docket, whereas res

judicata focuses on protecting the finality of judgments.” Id. (citation omitted). A

district court uses a two-part test to determine whether a complaint is duplicative of

another pending complaint. It examines: (1) mutuality of the parties and their

privies, and; (2) whether “separate cases arise from the same transaction or series

of transactions.” Id. at 841–42 (citations and quotation marks omitted).

      The PLRA mandates that the district court screen civil cases filed by

prisoners. See 28 U.S.C. § 1915A(a). A prisoner may not proceed in forma

pauperis if he has, on at least three occasions, brought an action or appeal in

federal court “that was dismissed on the grounds that it is frivolous, malicious, or

fails to state a claim upon which relief may be granted.” Id. § 1915(g). A prisoner

plaintiff with three strikes must demonstrate that he is in imminent danger of

serious physical injury in order to proceed IFP. Id.; Brown v. Johnson, 387 F.3d

1344, 1349 (11th Cir. 2004). An allegation of past imminent danger does not


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invoke this exception. Medberry v. Butler, 185 F.3d 1189, 1193 (11th Cir. 1999).

In determining whether the imminent-danger exception applies, we construe a pro

se plaintiff’s complaint liberally, accept all of the allegations as true, and view the

complaint as a whole. See Brown, 387 F.3d at 1350.

      In Brown, we assessed a pro se complaint filed by a prisoner with HIV and

hepatitis. Id. Brown’s doctor stopped his prescribed treatment, which caused

Brown to suffer from “prolonged skin and newly developed scalp infections,

severe pain in the eyes and vision problems, fatigue and prolonged stomach pains.”

Id. Liberally construing his allegations, and accepting them as true, we concluded

that he had alleged “a total withdrawal of treatment for serious diseases,” which

led to an increased susceptibility “to various illnesses” and could cause “his

condition [to] rapidly deteriorate.” Id. This was enough, we held, to allege

imminent danger of serious physical injury.

      O’Connor’s condition is similar. Like the plaintiff in Brown, O’Connor

alleged that he had not yet received an approved surgery, the continued delay of

which was likely to cause his overall physical condition to deteriorate. Further, he

alleged both current complaints and future concerns about his medical condition




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and the lack of proper treatment, and alleged specific facts showing that his

medical conditions, specifically his gastrointestinal issues, were severe.1

       Moreover, O’Connor’s claims are not duplicative of claims he raised in

another case pending in the U.S. District Court for the Middle District of Florida,

O’Connor v. RMC et al., No. 3:15-cv-1387. The claims in each case raise similar

issues but arise out of separate incidents occurring during different periods of time,

at different prison facilities, and against different defendants. For example, the

complaint in this case raises claims arising from April through August 2017;

O’Connor v. RMC, conversely, covers claims arising between April 2010 and

November 2015. Accordingly, we reverse the district court’s dismissal of

O’Connor’s complaint and remand for proceedings consistent with this opinion.

       REVERSED AND REMANDED.




1
  Most recently in O’Connor’s series of litigation, we held that he had alleged gastrointestinal
ailments that may “rise to the level of imminent danger of serious physical injury” that would
permit him to proceed IFP. O’Connor v. Backman, 743 F. App’x 373, 376 (11th Cir. 2018).
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