United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 04-1404

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Mark Richard Still, *

*

Appellant, *

* Appeal from the United States

v. * District Court for the Eastern

* District of Missouri.

Steven Crawford, M.D.; Correctional *

Medical Services; Charlene Counts, * [UNPUBLISHED]

R.N., *

*

Appellees. *

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Submitted: June 29, 2004

Filed: July 28, 2004

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Before MORRIS SHEPPARD ARNOLD, SMITH, and COLLOTON, Circuit Judges.

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PER CURIAM.

Mark Richard Still, a Missouri inmate, appeals the district court’s dismissal of

his 42 U.S.C. § 1983 action for maliciousness, and moves for leave to proceed in

forma pauperis (IFP) on appeal. Although Mr. Still is subject to the three-strikes bar

under 28 U.S.C. § 1915(g), we find his allegations that his degenerative disc and back

diseases are worsening, causing him to be in pain and have limited activities and

capabilities, and that he is at risk for disc rupture and partial paralysis if he does not

receive medical treatment are sufficient to invoke the imminent-danger exception.
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Thus, we grant him IFP status, leaving the fee collection details to the district court

in accordance with 28 U.S.C. § 1915(b). We also reverse and remand.

When Mr. Still filed the instant section 1983 complaint, he indicated that he

had not begun any other civil actions in state or federal court that dealt with the same

facts involved in the instant action, or otherwise relating to his confinement.

However, on his IFP application (submitted at the same time), he indicated that he

had brought eleven prior cases while incarcerated or detained, and that these eleven

cases had been dismissed for frivolousness, maliciousness, or failure to state a claim.

He also submitted a list of these eleven cases, noting that a district court clerk had

compiled the list at his request. Defendant Dr. Steven Crawford moved to dismiss the

action for maliciousness, contending that a previous district court action of Mr. Still’s

had been dismissed for maliciousness because Mr. Still had failed to disclose prior

cases in his complaint, and that in the instant case Mr. Still had not disclosed his prior

litigation history in his complaint either. The district court dismissed the action with

prejudice, stating that Mr. Still had given “no indication whatsoever of any previous

cases,” and finding that his failure to do so was an intentional misrepresentation and

was in bad faith.

We assume, because the district court did not so state, that the dismissal was

under 28 U.S.C. § 1915(e)(2)(B)(i) (court shall dismiss IFP case at any time if court

determines that action is frivolous or malicious), and we conclude that the district

court abused its discretion in dismissing the case, see Denton v. Hernandez, 504 U.S.

25, 33-34 (1992) (standard of review). We respectfully disagree with the district

court’s finding that Mr. Still’s complaint contained intentional misrepresentations

about his prior litigation history. When Mr. Still filed his complaint and moved for

IFP status, he submitted a list of his prior eleven cases, and he resubmitted this list

after defendant moved to dismiss. Even if his representation on the form complaint

(that he had no prior cases) could be viewed as misleading and inaccurate, the

simultaneously submitted IFP application (noting eleven prior cases) and the
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litigation-history list clarified his answer. Further, we see no harm in Mr. Still’s not

informing the court or defendant, in his complaint, of the full extent of his prior

litigation: the court already knew Mr. Still had at least three “strikes” under

section 1915(g) and granted him leave to file the complaint IFP anyway; there was

no dispute about whether Mr. Still’s prior cases related to the instant claims; and

defendant had not moved to dismiss the instant action on claim- or issue-preclusion

grounds. Cf. Wright v. Sargent, 869 F.2d 1175, 1176 (8th Cir. 1989) (per curiam) (in

assessing whether dismissal with prejudice under Fed. R. Civ. P. 41(b) is appropriate

sanction, court considers egregiousness of plaintiff’s conduct and its adverse effect

on defendant and administration of justice). 

Accordingly, we reverse and remand for further proceedings.

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