IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 15-60706

EDDIE JOSEPH BROWN, 

 Plaintiff - Appellant 

v. 

APRIL MEGG; DR. RON WOODALL; WEXFORD HEALTH, 

 Defendants - Appellees 

Appeal from the United States District Court

for the Southern District of Mississippi 

Before STEWART, Chief Judge, and HIGGINBOTHAM and COSTA, Circuit 

Judges. 

GREGG COSTA, Circuit Judge:

Under the Prison Litigation Reform Act (PLRA), a third strike bars a 

prisoner from proceeding in forma pauperis unless “the prisoner is under 

imminent danger of serious physical injury.” 28 U.S.C. § 1915(g). A strike 

issues when a prisoner’s action is dismissed as frivolous, malicious, or for 

failure to state a claim. Id. When the action is dismissed entirely on one of 

these grounds, the strike inquiry is easy enough. But what of an action that is 

dismissed partly on section 1915(g) grounds and partly on other grounds? This 

case poses that question as some of Eddie Brown’s allegations were dismissed 

for failure to state a claim while others were adequately pleaded but failed at 

United States Court of Appeals

Fifth Circuit

FILED

May 15, 2017

Lyle W. Cayce

Clerk

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summary judgment. We affirm those merits rulings but conclude that a strike 

does not issue when only some claims are dismissed on section 1915(g) 

grounds. 

I. 

Brown suddenly began experiencing severe stomach pain on July 14, 

2014. With the help of inmates and prison staff, he submitted a request for 

medical attention. Brown was taken to the infirmary, operated by Wexford 

Health, where he was seen within a couple hours by Dr. Ron Woodall.

Brown asserts that Woodall was hostile and dismissive of his complaints, 

purportedly telling Brown “he was full of shit.” But he admits that Woodall 

ordered an x-ray and blood work, both of which produced normal results. 

Brown further concedes that Woodall prescribed him zantac and a 

gastrointestinal cocktail. These medications treat conditions, like ulcers, that 

may cause a person’s stomach to produce too much acid. Brown was discharged 

from the infirmary the same day. 

Brown alleges that over the next two weeks he was incessantly in pain 

and made various unanswered requests to see doctors. Supporting Brown’s 

account are three affidavits by inmates who purport to have seen Brown in 

pain and helped him make requests for medical attention. Brown also offers 

forms requesting treatment dated July 18, 21, 23, and 25. None but the last 

form, however, are marked received by medical staff. 

Defendants deny knowledge of any such requests. Woodall says there is 

no record of any sick call request between July 14 and July 29 and that he 

never refused to see or treat Brown. April Meggs, the nurse in charge of 

staffing for Wexford, states that she never saw Brown as a patient nor was she 

ever responsible for his health. 

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Brown next visited the infirmary on July 29. Dr. Charmaine McCleave 

ordered an x-ray, IV fluids, and blood work. Brown’s x-ray again indicated no 

abnormalities. The next day, however, after again examining Brown and 

reviewing his lab results, McCleave transferred Brown to a hospital. There it 

was discovered that Brown had a hole in his stomach, caused by an ulcer, which

was allowing acids to secrete into his internal tissue. Brown successfully 

underwent corrective surgery. 

Brown was discharged and returned to prison with instructions to take 

pain medications for up to ten days, as necessary, and to discontinue the use 

of zantac. Woodall and McCleave gave him pain medications for fifteen days. 

Brown’s medical records reflect that the doctors reduced the potency of Brown’s 

pain medications as his pain subsided. The doctors did not, however, 

discontinue Brown’s zantac prescription. 

Brown brought this section 1983 lawsuit against Woodall, Meggs, and 

Wexford, alleging they were deliberately indifferent to his serious medical 

condition. In a single order, the magistrate judge rejected all of Brown’s

claims. The order held that the allegations against Meggs in her supervisory 

capacity and against Wexford for the acts of its employees failed to state a 

claim. It also granted summary judgment finding insufficient evidence to 

support the claims against Woodall and the contention that Meggs was 

responsible for the delay in his treatment. Because some of Brown’s 

allegations were dismissed for failure to state a claim, the court assessed a 

section 1915(g) strike. 

II. 

We agree that Brown’s claims were properly dismissed. 

Brown does not contest with much force that his allegations against 

Meggs and Wexford fail to state a claim. He alleges no more than that Meggs 

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and Wexford ought to be liable for the acts of their subordinates. But without 

more, Meggs’s supervisory role does not make her so liable. Thompkins v. Belt, 

828 F.2d 298, 303–04 (5th Cir. 1987). Wexford likewise is not automatically 

liable for the acts of its employees. Kohler v. Englade, 470 F.3d 1104, 1114–15 

(5th Cir. 2006) (holding that respondeat superior liability does not attach in 

section 1983 claims). And Brown does not identify any Wexford policy, 

practice, or custom of ignoring sick call requests. Howell v. Town of Ball, 827 

F.3d 515, 527 (5th Cir. 2016). 

As for his claims dismissed at summary judgment,1 Brown’s proof does 

not surmount the high threshold of deliberate indifference. That standard 

requires showing that a prison official knew of, but disregarded, an inmate’s 

serious medical need. Gobert v. Caldwell, 463 F.3d 339, 346 (5th Cir. 2006). 

Brown argues Woodall was deliberately indifferent to his needs in three 

ways: (1) intentionally misdiagnosing him, (2) interfering with his postsurgery 

treatment, and (3) refusing to treat him. The first two claims are belied by the 

record. Woodall saw Brown, ordered x-rays and bloodwork, and, after receiving 

normal results, prescribed medication to alleviate Brown’s symptoms. That 

Woodall may have made a dismissive comment or gotten the diagnosis wrong 

does not establish that he “refused to treat [Brown], ignored his complaints, 

intentionally treated him incorrectly, or engaged in any similar conduct that 

would clearly evince a wanton disregard for any serious medical needs.” 

Johnson v. Treen, 759 F.2d 1236, 1238 (5th Cir. 1985). Brown’s medical records 

 

1 Brown alleges the district court erred by not apprising him of the summary judgment 

requirements. Although courts should advise pro se prisoners of procedural rules, Davis v. 

Fernandez, 798 F.3d 290, 293–94 (5th Cir. 2015), we have held that they need not be given 

additional notice of the consequences of a summary judgment motion and the right to submit 

opposing affidavits as the notice given by Rule 56 and the local rules suffices, Martin v. 

Harrison County Jail, 975 F.2d 192, 193 (5th Cir. 1992).

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likewise reveal he continuously received the prescribed postsurgery pain 

medications. Although Woodall did erroneously continue Brown’s zantac 

prescription, Brown offers no evidence suggesting that Woodall intentionally 

ignored the specialist’s order to the contrary. Brown’s evidence supporting his 

third allegation falls short for a different reason: it does not implicate Woodall. 

Brown points generally to his requests for doctors going unanswered. But in 

testimony that is not disputed, Woodall says he did not see Brown’s sick call 

requests or refuse to treat him. 

The magistrate judge also correctly rejected Brown’s claims based on 

doctors not being on site around-the-clock. Brown cites no authority, and we 

have found none, requiring that as a general matter. What is more, Brown’s 

evidence shows doctors are on site throughout the day and available by phone 

at all other times when nurses are always present. See Hoptowit v. Ray, 682 

F.2d 1237, 1253 (9th Cir. 1982) (en banc) (noting the Eighth Amendment 

requires that prison medical staff be “able to treat medical problems or to refer 

prisoners to others who can”). In any event, Brown offers no proof that he 

suffered any injury as a result of doctors not being present at night. 

III. 

Given our agreement that it was proper to dismiss some allegations for 

failure to state a claim and others at the summary judgment stage for lack of 

evidentiary support, we confront the strike question posed at the outset. 

Section 1915(g) reads as follows: 

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. 

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28 U.S.C. § 1915(g). The statute speaks of “actions,” not “claims,” that were 

dismissed as frivolous, malicious, or for failure to state a claim. The ordinary 

meaning of “action” is the entire lawsuit. See FED. R. CIV. P. 2 (noting that 

“[t]here is one form of action—the civil action”); FED. R. CIV. P. 3 (stating that 

a civil “action” begins with the filing of a complaint); FED. R. CIV. P. 54(b) 

(recognizing that an “action” may contain “more than one claim” so that “any 

order . . . that adjudicates fewer than all the claims . . . does not end the 

action”); see also Action, BLACK’S LAW DICTIONARY (10th ed. 2014) (defining 

“action” as a “civil or criminal judicial proceeding” and noting that “[t]he terms 

‘action’ and ‘suit’ are nearly if not quite synonymous” with the distinction being 

that action historically refers to proceedings in courts of law and suit to those 

in courts of equity). 

That the PLRA uses “action” in its ordinary sense finds support in how 

the term is used elsewhere in section 1915. Section 1915(e)(2) says the court

“shall dismiss the case” notwithstanding partial payment if the “action or 

appeal” is frivolous or malicious. 28 U.S.C. § 1915(e)(2). Likewise, Section 

1915(f)(1) lists “action” in tandem with “suit” when discussing judgment for 

costs. Id. § 1915(f)(1) (“Judgment may be rendered for costs at the conclusion 

of the suit or action . . . .”). 

Consistent with this reading, many other circuits have held that a strike 

issues only when the entire case is dismissed for being frivolous, malicious, or 

failing to state a claim. See Thompson v. Drug Enforcement Admin., 492 F.3d 

428, 432 (D.C. Cir. 2007) (“Section 1915(g) speaks of the dismissal of ‘actions 

and appeals,’ not ‘claims.’”); Turley v. Gaetz, 625 F.3d 1005, 1008–09 (7th Cir. 

2010) (“[W]e believe that the obvious reading of the statute is that a strike is 

incurred for an action dismissed in its entirety on one or more of the three 

enumerated grounds.”); Tolbert v. Stevenson, 635 F.3d 646, 651–52 (4th Cir. 

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2011) (“[W]e conclude that ‘action’ in § 1915(g) unambiguously means an entire 

case or suit. Therefore, § 1915(g) requires that a prisoner’s entire ‘action or 

appeal’ be dismissed on enumerated grounds in order to count as a strike.”); 

Thomas v. Parker, 672 F.3d 1182, 1183 (10th Cir. 2012) (same); Ellis v.

Simmons, 654 F. App’x 250, 251 (8th Cir. 2016) (same); see also Pointer v. 

Wilkinson, 502 F.3d 369, 375–76 (6th Cir. 2007) (implicitly recognizing the 

same). 

These courts’ reading of section 1915(g) comports with the PLRA’s effort 

“to filter out the bad claims filed by prisoners and facilitate consideration of 

the good.” Coleman v. Tollefson, 135 S. Ct. 1759, 1762 (2015). Allowing the 

Rule 12(b)(6) dismissal of a single claim out of many—a common occurrence 

even for cases with sophisticated plaintiff’s counsel in this day of Twombly and 

Iqbal—to count as a strike would mean a prisoner gets a strike even when 

some of the claims succeed. Thompson, 492 F.3d at 432 (“[I]t would make no 

sense to say—where one claim within an action is dismissed for failing to state 

a claim and another succeeds on the merits—that the ‘action’ has been 

dismissed for failing to state a claim.”). Imposing a strike only when the action

itself is dismissed for one or more of the qualifying reasons is consistent with 

the statute’s balance between deterring frivolous filings while maintaining 

access to the courts for facially valid claims. 

Patton v. Jefferson Correctional Ctr., 136 F.3d 458 (5th Cir. 1998), poses 

no obstacle to reading section 1915(g) as its language dictates. Patton was 

denied in forma pauperis status for having three strikes. Id. at 461. Two of 

those strikes were for actions involving a section 1983 claim that was 

dismissed as frivolous and a habeas claim that was dismissed for failure to 

exhaust. Id. at 462–63. In holding that dismissal of those actions counted as 

strikes, we explained that when a single complaint includes both habeas claims 

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and civil rights claims, the district court should separate the claims and decide 

the section 1983 claims. Id. at 464. In that sense, two separate actions were 

at issue. Indeed, the three strikes provision does not apply to habeas actions 

as they “are considered something different from traditional civil actions.” 

Carson v. Johnson, 112 F.3d 818, 820 (5th Cir. 1997). Because the civil rights 

portion of a complaint raising both habeas and section 1983 claims is the only 

“civil action” to which section 1915(g) applies, it makes sense to impose a strike 

when all the section 1983 claims in such an action are dismissed for 

frivolousness. We further noted that such a rule was necessary to prevent an 

end run around the PLRA as “litigious prisoners could immunize frivolous 

lawsuits from the ‘three strikes’ barrier by a simple expedient of pleading 

unexhausted habeas claims as components of § 1983 suits.” Patton, 136 F.3d 

at 464.2

That same potential for abuse does not exist in a case like this one in 

which some of the claims got past the pleading stage yet failed, as many 

lawsuits of all types do, at summary judgment.3 Because this “action” was not 

 

2 Some unpublished opinions cite Patton to impose strikes when some claims were 

dismissed on section 1915(g) grounds and other civil rights claims were dismissed for failing 

to exhaust administrative prison procedures. See Taylor v. Swift, 618 F. App’x 228, 228–29 

(5th Cir. 2015); Espinal v. Bemis, 464 F. App’x 250, 252 (5th Cir. 2012); Sears v. Blanco, 442 

F. App’x 961, 963 (5th Cir. 2011). Aside from being nonbinding, those cases are no barrier to 

the general rule we recognize today. Even circuits that rely on an “end run around” rationale 

to allow strikes for dismissals partly on section 1915(g) grounds and partly for failure to 

exhaust civil rights claims acknowledge that strikes generally do not issue for partial 

dismissals. See Thomas v. Parker, 672 F.3d 1182, 1183–84 (10th Cir. 2012) (holding that 

partial dismissals are not grounds for a strike but treating “end run around” cases as 

exceptions to that rule); Pointer v. Wilkinson, 502 F.3d 369, 375–76 (6th Cir. 2007) (same); 

but see Turley v. Gaetz, 625 F.3d 1005, 1008–09 (7th Cir. 2010) (holding that “dismissal of an 

action, in part for failure to exhaust and in part as frivolous, malicious or for failure to state 

a claim does not constitute a strike under § 1915(g)”). 

3 We recognize that two unpublished opinions have imposed strikes in the situation 

we face. See Foreman v. Potter, 382 F. App’x 370 (5th Cir. 2010); Walzier v. McMullen, 333 

F. App’x 848 (5th Cir. 2009). But neither case provides any analysis to support that decision

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“dismissed on the grounds that it is frivolous, malicious, or fails to state a 

claim,” a strike should not have been imposed. 

* * * 

We AFFIRM the judgment of the district court but VACATE the strike. 

 

or grapples with the meaning of “action” that leads us to join all the other circuits that have 

considered this question.

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