                                                                    [DO NOT PUBLISH]

                      IN THE UNITED STATES COURT OF APPEALS

                                   FOR THE ELEVENTH CIRCUIT
                                    ________________________               FILED
                                                                  U.S. COURT OF APPEALS
                                            No. 11-11828            ELEVENTH CIRCUIT
                                        Non-Argument Calendar        FEBRUARY 14, 2012
                                      ________________________           JOHN LEY
                                                                          CLERK
                                D.C. Docket No. 1:10-cv-23267-MGC

WILLIE ALBERT SMITH,

lllllllllllllllllllllllllllllllllllllll                              l Plaintiff-Appellant,

                                               versus

COLONEL CLEMONS, Correctional Officer,
LT. VEAL,
SGT. R. BROWN,
SGT. FIGUROA,
SGT. EDGECOMB, et al.,

llllllllllllllllllllllllllllllllllllllll                            Defendants-Appellees.

                                     ________________________

                                           No. 11-11834
                                       Non-Argument Calendar
                                    _________________________

                                 D.C. Docket No. 1:11-cv-20439-UU

WILLIE ALBERT SMITH,

                                                                 Plaintiff-Appellant,
                                       versus

COLONEL CLEMONS,
SGT. FIGUROA,
SGT. E. BROWN,
SGT. CLARK,
C.O.I. HERNANDEZ,

                                                           Defendants-Appellees.
                           ________________________

                   Appeals from the United States District Court
                       for the Southern District of Florida
                          ________________________
                               (February 14, 2012)

Before CARNES, MARTIN and FAY, Circuit Judges.

PER CURIAM:

      Willie Albert Smith, incarcerated and proceeding pro se, appeals the district

court’s dismissal of his civil rights complaints under the “three strikes” provision

of the Prison Litigation Reform Act (PLRA). 28 U.S.C. § 1915(g). Smith argues

that the district court erred in finding he was not in “imminent danger of serious

physical injury,” a determination that would require Smith to pay the full $350.00

filing fee if he were to re-file his complaints. See id. And relatedly, Smith argues

that the district court erred in denying as moot three motions he had pending upon




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dismissal of the case.1

       We review de novo a dismissal under the PLRA’s “three strikes” provision,

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

The “three strikes” provision “bars a prisoner, who has filed three or more

complaints that have been dismissed as frivolous or malicious or for failure to

state a claim, from filing a complaint in forma pauperis, unless the prisoner is

‘under imminent danger of serious physical injury.’” Brown v. Johnson, 387 F.3d

1344, 1349 (11th Cir. 2004) (quoting 28 U.S.C. § 1915(g)).

       The magistrate judges’ reports and recommendations confirm, and Smith

does not dispute, that he qualifies as a three-striker under Section 1915(g). So, in

order to bring his claims in forma pauperis, Smith must be “under imminent

danger of serious physical injury,” including at the time he filed his complaints.

See Medberry v. Butler, 185 F.3d 1189, 1193 (11th Cir. 2004) (holding that a

three-strike prisoner was not “under imminent danger of serious physical injury”

because the threat he alleged at Everglades Correctional Institution “had ceased



       1
         Smith also argues that the magistrate judge erred in denying his motion to
consolidate his February 2011 case with two earlier civil rights cases, including the
September 2010 case. But Smith did not timely object to the magistrate judge’s order
denying his motion to consolidate and has, therefore, waived any objections. See Fed. R.
Civ. P. 72(a) (stating that a party “may not assign as error a defect in the order not timely
objected to”).

                                              3
prior to the filing of his Complaint”).

       In determining whether a prisoner is in imminent danger, we look to the

prisoner’s complaint “as a whole,” construing it liberally and accepting his

allegations as true. Brown, 387 F.3d at 1350 (in evaluating whether prison’s

failure to treat inmate with HIV placed him in imminent danger of serious injury,

looking to the whole of his complaint by considering his allegations of current

skin and vision problems as well as the “alleged danger of more serious

afflictions” in the future).

       In his initial Complaint, filed in September 2010, Smith alleged civil rights

violations by correctional officers at Everglades Correctional Institution. Among

those allegations, Smith claimed that in August 2010 Sergeant Brown punched

him in the abdomen, despite his having had hernia surgery nine days before.2

       Smith initiated a separate action by filing another complaint on February 5,

2011. In that complaint, Smith alleged correctional officers’ retaliation for his

September 2010 suit. Specifically, he claimed that Sergeant Brown had repeatedly

threatened him with violence more severe than the earlier punch in the gut.



       2
         In his February 2011 complaint, Smith alleges that this incident took place four
days before his hernia surgery. For our purposes, the timing of this incident is equally
significant, whether it happened four days before a scheduled surgery or shortly
thereafter.

                                             4
According to Smith, on January 9, 2011, Sergeant Brown told him that “if I do not

withdraw my lawsuit that the punch to my abdomen was just a taste of what he . . .

would do to me.” Smith also alleged that, on January 15, 2011, Sergeant Brown

called him over from the recreation line “and told me that he don’t give a fuck

about what I write up and that the day that he hit me in the abdomen was just an

example of what he can do to me and get away with it.”

      The magistrate judge evaluated Smith’s September 2010 complaint on

February 10, 2011. In recommending the dismissal of that complaint, the

magistrate judge took judicial notice of the allegations in Smith’s February 2011

complaint, but concluded that “[i]t is clear that in the six months following the

filing of this [September] complaint, the plaintiff has not been placed in imminent

danger.” Over Smith’s objections, the district court adopted the recommendation

of the magistrate judge and dismissed the case. Smith’s February 2011 complaint

followed a similar course and was dismissed on March 21, 2011. These appeals

followed.

      Accepting Smith’s allegations as true, and viewing them as a whole, Smith

has alleged mistreatment and the danger of more serious abuse. Cf. Brown, 387

F.3d at 1350 (finding imminent danger of serious physical injury where

mistreatment exposed prisoner to the “alleged danger of more serious afflictions”).

                                          5
Smith’s September 2010 complaint alleged that correctional officers, including

Sergeant Brown, engaged in physical violence against him. And his February

2011 complaint contained specific allegations that the physical violence would

become more dangerous: fresh threats of severe violence by the same officer,

Sergeant Brown. The court was aware of those allegations when it dismissed both

the September 2010 and the February 2011 complaints. We therefore conclude

that the allegations made in Smith’s complaints showed an “imminent danger of

serious physical injury,” at the time of filing and since, sufficient to permit his

filing these claims in forma pauperis.

      In light of this conclusion, we vacate the district court’s dismissal of

Smith’s complaints under 28 U.S.C. § 1915(g), and remand for further

proceedings consistent with this opinion, including the disposition of the three

motions that were denied as moot following the dismissal of Smith’s complaints.

      VACATED AND REMANDED.




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