United States Court of Appeals

for the Fifth Circuit

____________

No. 21-40856

____________

Anthony Prescott, 

Plaintiff—Appellant,

versus

UTMB Galveston Texas; Warden Michael Butcher; 

D.D.S. Andres Gilman; Practice Manager Pam Pace; RN 

Linda Garner, 

Defendants—Appellees.

______________________________

Appeal from the United States District Court 

for the Southern District of Texas

USDC No. 3:19-CV-190

______________________________

Before Richman, Chief Judge, and Stewart and Douglas, Circuit

Judges.

Carl E. Stewart, Circuit Judge:

This appeal arises from pro se plaintiff Anthony Prescott’s suit against 

five University of Texas Medical Branch (“UTMB”) personnel. After 

reviewing the pleadings and Prescott’s more definite statement, the district 

court determined that he failed to state a claim and dismissed the complaint. 

He timely appealed and filed a motion to proceed on appeal in forma pauperis 

(“IFP”). The district court denied Prescott’s IFP motion reasoning that he 

United States Court of Appeals

Fifth Circuit

FILED

July 10, 2023

Lyle W. Cayce

Clerk

Case: 21-40856 Document: 00516815355 Page: 1 Date Filed: 07/10/2023
No. 21-40856

2

was no longer eligible under 28 U.S.C. § 1915(g). This court ordered the IFP 

motion be carried with the case on appeal. For the following reasons, we have 

determined that Prescott has accumulated more than three strikes and has 

not established imminent danger, thus his motion to proceed IFP is

DENIED, and his appeal is DISMISSED for failure to pay the required 

filing fees. See 28 U.S.C. §§ 1911–14. 

I. FACTS & PROCEDURAL HISTORY 

Prescott was an inmate in the Texas Department of Criminal Justice

at the time he filed this suit against five UTMB personnel under 42 

U.S.C. § 1983. After reviewing the amended complaint and the moredefinite-statement,

1

the district court determined that Prescott failed to plead 

a § 1983 claim as to each defendant. Further, the district court determined, 

sua sponte, that the individual defendants were entitled to Eleventh 

Amendment immunity from claims of monetary damages because they acted 

on behalf of the state. It dismissed the case with prejudice under 28 U.S.C. 

§§ 1915(e)(2)(B) and 1915A(b) and concluded that the dismissal counted as 

a strike for purposes of 28 U.S.C. § 1915(g). 

Prescott timely appealed the district court’s order and filed a motion 

for leave to proceed IFP. The district court denied the motion after 

determining that he was no longer eligible for IFP-status because he had 

already accumulated at least three strikes and failed to demonstrate that he 

qualified for § 1915(g)’s imminent danger exception. The district court based 

its decision on the strikes that Prescott accumulated in: 1. Prescott v. UTMB, 

Civil Action No. 3:19-cv-190, Dkt. 23 (S.D. Tex. Oct. 22, 2021); 2. Prescott v.

_____________________

1 When a complaint fails to provide adequate notice, it can be cured with a Rule 

12(e) motion for a more definite statement. See Swierkiewicz v. Sorema N. A., 534 U.S. 506, 

514 (2002). 

Case: 21-40856 Document: 00516815355 Page: 2 Date Filed: 07/10/2023
No. 21-40856

3

Doe, Civil Action No. 4:18-cv-4231, Dkt. 28 (S.D. Tex. Feb. 26, 2021); 3. 

Prescott v. Pace, Civil Action No. 3:18-cv-378, Dkt. 6 (S.D. Tex. Dec. 6, 2018); 

4. Prescott v. Abbott, Civil Action No. 1:18-cv-957, Dkts. 5, 14 (W.D. Tex. May 

20, 2019); and 5. Prescott v. Abbott, 801 F. App’x 335, 336 (5th Cir. 2020) (per 

curiam) (unpublished).

Prescott then filed a motion to proceed IFP, along with a supporting 

affidavit with this court and a judge ordered that his IFP motion be carried 

with the case. There are three issues on appeal, but because IFP-status is a 

threshold question, it is the first and, ultimately, the only question we 

address.

II. STANDARD OF REVIEW

While denial of an IFP motion is generally reviewed for abuse of 

discretion, whether a prior dismissal constitutes a strike is a legal question 

which is reviewed de novo. See Camp v. McGill, 789 F. App’x 449, 450 (5th 

Cir. 2020) (per curiam) (unpublished) (“Although our court has not 

expressly established a standard of review for a district court’s conclusion 

that a prior dismissal counts as a strike for purposes of 

§ 1915(g) . . . [w]hether dismissal constitutes a strike is a purely legal 

question, so we join our sister circuits in reviewing the issue de novo.”).

Further, “[i]t is well-established that pro se complaints are held to less 

stringent standards than formal pleadings drafted by lawyers.” Taylor v. 

Books A Million, Inc., 296 F.3d 376, 378 (5th Cir. 2002) (citation and 

quotation marks omitted). “However, regardless of whether the plaintiff is 

proceeding pro se or is represented by counsel, conclusory allegations or legal 

conclusions masquerading as factual conclusions will not suffice to prevent a 

motion to dismiss.” Id. (citation and quotation marks omitted). 

Case: 21-40856 Document: 00516815355 Page: 3 Date Filed: 07/10/2023
No. 21-40856

4

III. DISCUSSION

In his motion for IFP before this court, Prescott argues that the district 

court erred in denying his motion for IFP because a strike cannot be issued 

when his case is pending on appeal. He also argues that he fits within the 

imminent danger exception to § 1915(g). We address each argument in turn. 

1. 28 U.S.C. § 1915 (g) — Three Strike Rule 

a. Strikes Count Even While on Appeal

We begin our analysis by examining what constitutes a strike for 

§ 1915(g) purposes. Under 28 U.S.C. § 1915(b), this court may permit a party 

to proceed IFP on appeal if he establishes financial eligibility. Section 1915(g) 

prohibits IFP when a prisoner: 

[H]as, 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.

Lomax v. Ortiz-Marquez, 140 S. Ct. 1724 n.1, 1727 (2020) (“The text of the 

[Prison Litigation Reform Act (“PLRA”)]’s three-strikes provision makes 

this case an easy call. A dismissal of a suit for failure to state a claim counts 

as a strike, whether or not with prejudice.”); Sellers v. Plattsmier, 637 F. 

App’x 111, 113 (5th Cir. 2015) (per curiam) (unpublished) (holding that “the 

district court’s dismissal of Sellers’s complaint as frivolous and for suing an 

immune defendant and this court’s dismissal of this appeal as frivolous count 

as two strikes under § 1915(g)”). “The three strikes provision was designed 

to filter out the bad claims and facilitate consideration of the good.” Coleman 

v. Tollefson, 575 U.S. 532, 539 (2015) (citation and quotation marks omitted). 

Case: 21-40856 Document: 00516815355 Page: 4 Date Filed: 07/10/2023
No. 21-40856

5

Thus, the decision as to whether a strike applies solely depends on the basis 

for the dismissal. See Lomax, 140 S. Ct. at 1724–25. 

With regard to how strikes are counted, the Supreme Court and the 

Fifth Circuit have held that a strike counts even if the case is pending on 

appeal. In Coleman, the Court interpreted § 1915 as treating a dismissal in a 

district court as a “prior occasion” separate and apart from the appeal. 

Coleman, 575 U.S. at 538 (“The [IFP] statute repeatedly treats the trial and 

appellate stages of litigation as distinct.”). The Court held that “[a] prior 

dismissal on a statutorily enumerated ground counts as a strike even if the 

dismissal is the subject of an appeal.” Id. at 537. We have repeatedly held 

the same and have determined that a strike may be warranted for qualifying 

dismissals in both the district court and on appeal. See also McCollum v. Lewis, 

No. 21-11259, 2022 WL 3928526 at *1 (5th Cir. Aug. 31, 2022) (per curiam) 

(unpublished) (“Both the district court’s dismissal of [the plaintiff’s] claims 

as frivolous and this court’s dismissal of the appeal as frivolous count as 

strikes for purposes of § 1915(g).”); Hernandez v. Cooper, No. 20-40607, 

2021 WL 5444742 at *1 (5th Cir. Nov. 19, 2021) (per curiam) (unpublished)

(“The dismissal of the appeal and the district court’s dismissal of the 

complaint count as two strikes under 28 U.S.C. § 1915(g).”). 

Having established that a plaintiff may receive a strike based on a 

district court decision and receive an additional strike by this court if the 

appeal is frivolous, we now turn to whether Prescott has accumulated three 

strikes pursuant to § 1915(g) to determine whether the district court erred in 

its denial of IFP.

b. Prescott’s Strike History

Strike One

In Prescott v. Abbott, the district court, adopting the recommendation 

of the magistrate judge, dismissed Prescott’s claims. See Civil Action No. 

Case: 21-40856 Document: 00516815355 Page: 5 Date Filed: 07/10/2023
No. 21-40856

6

1:18-cv- 957, Dkts. 5, 14 (W.D. Tex. May 20, 2019). It determined that the 

named defendants were immune from suit because Prescott did not allege 

facts to support that the defendants violated his constitutional rights in their 

individual capacities, and it dismissed the claims as frivolous. See Sellers, 637 

F. App’x at 113. On November 30, 2018, the district court issued Prescott 

his first strike. Prescott appealed that decision.2 While that case was pending 

on appeal, a separate lawsuit was pending in a different federal district court. 

Strike Two

In Prescott v. Pace, the district court determined that Prescott failed to 

state a claim because: 1. the Eleventh Amendment immunized the defendant 

in her official capacity; 2. there were no facts showing that the defendant was 

liable for Eighth Amendment violations in her individual capacity; and 3. the 

claims that the defendant’s improper handling of his grievances was a 

violation of the Due Process Clause were without merit. See Civil Action No. 

3:18-cv-378, Dkt. 6 (S.D. Tex. Dec. 6, 2018); see also Sellers, 637 F. App’x at 

113. On December 6, 2018, the district court determined that Prescott failed 

to state a claim and dismissed the case with prejudice. This dismissal counted 

as his second strike. See Lomax, 140 S. Ct. at 1724 (concluding that “[u]nder 

[§ 1915(g)], a prisoner accrues a strike for any action dismissed on the 

_____________________

2

In Prescott v. Abbott, Prescott asserted that the district court erred in holding that 

the defendants were entitled to immunity under the Eleventh Amendment because their 

immunity was abrogated under the American with Disabilities Act (“ADA”) and § 504 of 

the Rehabilitation Act (“RA”). See 801 F. App’x 335, 336 (5th Cir. 2020) (per curiam) 

(unpublished). A panel of this court held that Prescott failed to show that he was entitled 

to relief under the ADA and RA and that his remaining claims were conclusory and 

speculative. Id. We also concluded that Prescott failed to show how the district court 

abused its discretion in dismissing his claims as frivolous and thus affirmed the district 

court’s ruling. Id.; see also Taylor, 296 F.3d at 378. On April 17, 2020, the panel affirmed 

the district court’s strike and issued Prescott a warning that if he reached three strikes, he 

may not proceed IFP in any civil action or appeal filed while he is incarcerated unless he is 

under imminent danger of serious physical injury. 

Case: 21-40856 Document: 00516815355 Page: 6 Date Filed: 07/10/2023
No. 21-40856

7

ground[ ] that it . . . fails to state a claim upon which relief may be granted”)

(quotations omitted).

Strikes Three & Four

In 2021, Prescott received his third strike in Prescott v. Doe, for failure 

to state a claim and frivolity. See Civil Action No. 4:18-cv-04231, Dkt. 29 

(S.D. Tex. Feb. 26, 2021). In April 2022, after filing his notice of appeal in 

the instant case, a panel of this court decided Prescott v. Doe. See No. 21-

20151, 2022 WL 1010693 at *1 (5th Cir. Apr. 5, 2022) (per curiam) 

(unpublished) (citing Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983)). 

There we concluded that Prescott’s appeal was without merit and thus 

frivolous because he did not demonstrate how the district court erred in 

dismissing his case for failure to state a claim. Id. We denied his IFP motion 

and dismissed the case. We further determined that the dismissal of the 

district court as well as dismissal of the appeal counted as two additional 

strikes. See McGarrah v. Alford, 783 F.3d 584, 584–85 (5th Cir. 2015) (per 

curiam). We barred Prescott from proceeding IFP in any civil action or appeal 

and warned him that “any pending or future frivolous or repetitive filings in 

this court or any court subject to this court’s jurisdiction may subject him to 

additional sanctions.” Doe, 2022 WL 1010693 at *1. Despite only referencing 

the one strike he received in Abbott, these two strikes counted as Prescott’s 

third and fourth strikes. 

Strike Five

Turning now to the instant appeal, Prescott filed this case in federal 

district court in June 2019 before receiving his third strike in Doe and warning 

in the Abbott appeal. He filed his amended complaint in October 2020, after

receiving his warning in Abbott. Because this case was filed in district court 

during the pendency of Prescott’s aforementioned appeals, however, he was 

able to proceed IFP because he had not yet accumulated his third strike. The 

Case: 21-40856 Document: 00516815355 Page: 7 Date Filed: 07/10/2023
No. 21-40856

8

district court reviewed the pleadings and dismissed the case for failure to 

state a claim with prejudice and issued Prescott another strike, his fifth. See 

Lomax, 140 S. Ct. at 1727.

By the time Prescott filed his notice of appeal in November 2021, he

was on notice that he received four strikes, one warning, and was barred from 

proceeding IFP in a civil case unless he met the imminent danger exception.

3

After carefully reviewing his strike history, we conclude that Prescott has 

properly received at least three strikes in accordance with 28 U.S.C. 

§ 1915(g). Contrary to his assertions4, we need not reach the question left 

open by Coleman on whether a third strike issued in a case pending on appeal 

may count for purposes of determining IFP status. Coleman, 575 U.S. at 540–

41. This is because the district court’s strike here was his fourth not third and 

thus his IFP status does not pivot on that point. Consequently, his appeal 

may not proceed IFP unless he establishes the existence of imminent danger. 

2. 28 U.S.C. § 1915(g) Exception —Imminent Danger

Under § 1915(g), Prescott may pursue another action in federal court 

under IFP-status only if he is in “imminent danger of serious physical 

injury.” See Adepega v. Hammons, 103 F.3d 383, 388 (5th Cir. 1996). 

Prescott argues that he qualifies for this exception because he was 

repeatedly denied proper medical treatment in UTMB which, according to 

him, will likely result in the development of diabetes. He argues that he 

suffers from an abscessed tooth with an external chin fistula and a reoccurring 

_____________________

3 Although our decision relies only on the four strikes Prescott received prior to 

filing his notice of appeal (i.e., strikes issued by the district courts in Abbott, Pace, Doe, and 

the instant case), it is worth noting that, to date, Prescott has accumulated five strikes and 

two warnings.

4 Prescott argues that a strike issued by a district court in a case that is on appeal 

should not count during the pendency of that appeal. 

Case: 21-40856 Document: 00516815355 Page: 8 Date Filed: 07/10/2023
No. 21-40856

9

infection that he believes will spread in his mouth. Finally, he alleges that he 

was forced to eat food that he thought was contaminated by other inmates 

who viewed him as a snitch. He asserts that his consumption of this food may 

give rise to health concerns. 

“[T]he determination as to whether a prisoner is in ‘imminent 

danger’ must be made as of the time that he seeks to file IFP his complaint or 

notice of appeal.” Choyce v. Dominguez, 160 F.3d 1068, 1070 (5th Cir. 1998) 

(per curiam). Although Prescott was transferred out of the unit where the 

alleged imminent danger was said to have occurred and has since been 

released from prison, at the time he filed his notice of appeal, he was housed 

in the unit in question. Thus, we determine imminent danger as if he was still 

incarcerated. See id. Further, we have held that there must be a nexus 

between the supposed imminent danger and the allegations and claims in the 

underlying suit. See Stine v. Fed. Bureau of Prisons Designation & Sentence 

Computation Unit, 571 F. App’x 352, 354 (5th Cir. 2014) (per curiam)

(unpublished). Though some of the danger Prescott argues is related to the 

underlying suit, the imminence is questionable. Specifically, Prescott argues 

denial of proper medical treatment but fails to establish how he was denied 

treatment and that the denial was ongoing at the time he filed this suit. The 

district court determined that Prescott had a history of dental concerns and 

that he refused dental treatment on more than one occasion until he finally 

approved the treatment which resolved the dental issue being complained of 

here. 

With regard to food contamination, we have held that specific and 

detailed allegations of food contamination are sufficient to demonstrate 

imminent danger. See Camp v. Putnam, 807 F. App’x 303, 307 n.2 (5th Cir. 

2020) (per curiam) (unpublished) (holding that the plaintiff’s allegations 

“that the kitchen mixes spoiled food with new food, contaminating the entire 

meal and creating the risk of contracting salmonella and food poisoning” was 

Case: 21-40856 Document: 00516815355 Page: 9 Date Filed: 07/10/2023
No. 21-40856

10

sufficient “[b]ecause salmonella and food poisoning can be life-threatening 

illnesses”). That is not the case here. 

In this case, Prescott asserts a series of suspicions that his food had 

been tainted and assumes it is because he was viewed as a “snitch,” but he 

does not allege any facts to support allegations of food contamination. 

Instead, Prescott argues that his alleged contaminated food is the likely result 

of ineffective training and prison policies. These allegations are conclusory 

and speculative and thus fail to demonstrate imminent danger as required by 

§ 1915(g). See Taylor, 296 F.3d at 378.

Accordingly, we hold that the district court did not abuse its discretion 

in denying Prescott’s motion to proceed IFP. See Black v. Warren, 134 F.3d 

732, 733–34 (5th Cir. 1998). He has accumulated more than three strikes and 

has failed to demonstrate imminent danger in this case. Therefore, we 

DISMISS his appeal and bar him from proceeding IFP in any civil action or 

appeal filed while he is incarcerated or detained in any facility unless he is in 

imminent danger of serious physical injury as defined by § 1915(g). 

Alternatively, he may pay the appropriate fees. He may resume any claims 

dismissed under § 1915(g), if he decides to pursue them, under the fee 

provisions of 28 U.S.C. §§ 1911–14.

IV. CONCLUSION

For the foregoing reasons, Prescott’s motion for leave to proceed IFP 

is DENIED, and his appeal is DISMISSED for failure to pay filing fees 

pursuant to 28 U.S.C. §§ 1911–14.

Case: 21-40856 Document: 00516815355 Page: 10 Date Filed: 07/10/2023