Johnson v. Abangan et al

Filing 35

ORDER adopting 32 Report and Recommendations; terminating as moot 14 Motion for Preliminary Injunction; terminating as moot 14 Motion for TRO; granting 24 Motion to Dismiss. Johnson's in forma pauperis status is revoked; if he wishes to continue this lawsuit, he must pay the filing fee within sixty days. Failure to do so will result in dismissal without further notice. Signed by Chief District Judge Daniel P. Jordan, III on March 15, 2018.(SP)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF MISSISSIPPI
NORTHERN DIVISION
ROGER C. JOHNSON
V.

PLAINTIFF
CIVIL ACTION NO. 3:17-CV-102-DPJ-FKB

DR. ROLANDO ABANGAN, ET AL.

DEFENDANTS
ORDER

This prisoner lawsuit is before the Court on the Report and Recommendation of
Magistrate Judge F. Keith Ball [32]. Plaintiff Roger Johnson has three strikes under the Prison
Litigation Reform Act, so he is “barred from proceeding in forma pauperis pursuant to § 1915
while he is incarcerated or detained in any facility unless he is under imminent danger of serious
physical injury.” Johnson v. Lewis, 335 F. App’x 481, 483 (5th Cir. 2009) (citing 28 U.S.C.
§ 1915(g)). Nevertheless, he filed this suit in forma pauperis, claiming he was under imminent
danger of physical injury due to East Mississippi Correction Facility’s (“EMCF”) failure to
provide adequate medical care for his asthma. Compl. [1] at 11–12. As Defendants, Johnson
named Dr. Rolando Abangan and Nurse Little, who he identified as members of EMCF’s
medical staff. Id. at 3.1
After filing suit in February 2017, Johnson was transferred to Central Mississippi
Correctional Facility (“CMCF”) for a “custody upgrade.” Johnson Mot. [14] at 1. And in
October 2017, he was moved to South Mississippi Correctional Institution (“SMCI”). Johnson
Am. Decl. [27] at 2. Interestingly, as pointed out by Judge Ball, Johnson asked in multiple
filings to be returned to EMCF, “where there is medical treatment for his anxiety and other
1

Curiously, according to Defendants’ answers, they “provide medical services to the inmates
incarcerated at the South Mississippi Correctional Institute.” Abangan Answer [22] at 4; Little
Answer [23] at 4.

mental issues that threaten his physical health further endangering his life.” Johnson Am. Decl.
[29] at 2; see Johnson Mot. [14] at 4 (claiming “the plaintiff is entitled to a temporary restraining
order requiring the defendants to arrange transfer of the plaintiff to EMCF”). Despite these
transfers, the question is whether Johnson was in imminent danger of serious physical injury
“when he filed his complaint.” Cloud v. Stotts, 455 F. App’x 534, 535 (5th Cir. 2011) (citing §
1915(g); Banos v. O’Guin, 144 F.3d 883, 884–85 (5th Cir. 1998)).
Defendants contend he was not and moved to dismiss his complaint or alternatively to
revoke in forma pauperis status. They argue his allegations of delay in receiving his breathing
treatments due to understaffing do not demonstrate imminent harm. Defs.’ Mot. [24] at 3. Judge
Ball agreed, finding that Johnson’s admission that he had received treatment at EMCF, though
infrequently, combined with his request to return to that facility, warranted revocation of his in
forma pauperis status. R. & R. [32] at 5.
A close review of Johnson’s allegations suggests that they are better characterized as
complaints regarding the frequency and timeliness of his medical care; he has not advanced facts
that indicate he is in imminent danger. For example,
-

Johnson says he has asthma and is “constantly” refused, or made to wait for,
breathing treatments. He explains that he does “not have a rescue inhaler and
can only get breathing treatments every 4 hours.” Compl. [1] at 5.

-

Johnson suffered a collapsed lung in December 2016, which necessitated a
visit to the emergency room and hospitalization. This event, which makes up
the bulk of his Complaint, occurred almost three months before filing suit. He
recovered and was returned to general population on January 5, 2017. Id. at
5–7.

-

Similarly, much of Johnson’s Complaint takes issue with the treatment he
received on January 11, 2017, more than one month before filing suit. He
claims he complained of chest pain, but the medical unit returned him to his
cell without treatment. He came back to the medical unit later that evening,
and a nurse practitioner gave him a shot for pain. He says that particular nurse
“did not agree with the way [he] was being treated.” Id. at 8–9.
2

-

As for his condition at the time of filing suit, Johnson alleges that “[t]here is
still a problem with getting me to medical for breathing treatments” and he is
“still being told [to] wait until pill call” at 10:00 p.m., or sometimes midnight.
Id. at 9.

Johnson’s Objection further supports this conclusion. Obj. [33] at 3 (complaining about the
timeliness of treatment, such as having to wait 5–8 hours for breathing treatments).2
This finding is consistent with other courts’ handling of imminent-danger exceptions in
cases of asthma or other chronic medical conditions. For example, in Cain v. Shilling, the court
concluded the plaintiff was not in imminent danger where he received a breathing treatment for
his asthma the day before filing suit. No. 799-CV-00898, 2001 WL 515263, at *2 (W.D. Va.
Mar. 14, 2001). The court observed that the plaintiff had “received the treatments that are
available,” even if he did not “receive the treatment he believes is necessary.” Id. In another
asthma case, the Seventh Circuit said the plaintiff’s “struggle to breathe” was “a normal incident
of asthma rather than a ‘serious’ incremental harm.” Sanders v. Melvin, 873 F.3d 957, 960 (7th
Cir. 2017). The court noted that the plaintiff’s fears about a future attack did not amount to
imminent danger of serious physical injury. Id. Likewise, the court in Oliver v. Ashby dismissed
a three-strikes prisoner’s complaints of being denied his inhaler. No. 13-00263-KD-B, 2013 WL
6842805, at *2 (S.D. Ala. Dec. 27, 2013). The court cited the absence of allegations that the
prisoner was “suffering any breathing problems when he signed his complaint” or that “he did
not receive any asthma medication.” Id.

2

Johnson also seems to compare what he claims was “medically prescribed” with the treatment
he actually received. Obj. [33] at 3. But it is not clear who allegedly prescribed this treatment.
And at least one ARP response from Dr. Abangan suggests that Johnson is demanding treatment
that is not considered medically necessary. Id. at 44 (“If your O2 Sat is 95 & above you do not
need breathing treatment.”).
3

These cases, and others like them, support Judge Ball’s finding that Johnson is not
entitled to the imminent-danger exception. See Brown v Beard, 492 F. Supp. 2d 474, 478 (E.D.
Pa. 2007) (denying in forma pauperis status where the plaintiff did not dispute he was receiving
medical attention for high blood pressure, low blood sugar, and high cholesterol, “but merely
disputed findings and quality of treatment he is receiving”).
Accordingly, the Report and Recommendation [32] is adopted as the opinion of the
Court. Defendants’ motion [24] to revoke in forma pauperis status is granted. Johnson’s in
forma pauperis status is revoked; if he wishes to continue this lawsuit, he must pay the filing fee
within sixty days. Failure to do so will result in dismissal without further notice.
Finally, the Court finds that Johnson’s Motion for Preliminary Injunction and TRO [14],
which complains about conditions at CMCF (where Plaintiff is no longer housed), should be
terminated as moot.3
SO ORDERED AND ADJUDGED this the 15th day of March, 2018.
s/ Daniel P. Jordan III
CHIEF UNITED STATES DISTRICT JUDGE

3

Much of what Johnson complains about in his briefs relates to the conditions at his current
facility. Those issues must be pursued in another action against those potential defendants.
4