Wanzer v. Rayford, et al

United States Court of Appeals
for the Fifth Circuit

No. 20-50668

Jerry Wanzer,

Plaintiff—Appellant,

versus

Phonso J. Rayford, Senior Warden, John B. Connally Unit, sued in
their individual and official capacity; John A. Marcum, Assistant
Warden, John B. Connally Unit, sued in their individual and official capacity;
FNU Stengel, Assistant Warden, John B. Connally Unit, sued in their
individual and official capacity; Viola Company, sued in their individual
and official capacity; Gary Wagner, Water Treatment Plant
Superintendent, sued in their individual and official capacity; Kelly L.
Kotzur, Food Kitchen Captain, John B. Connally Unit, sued in their
individual and official capacity; Kathy S. Akin, Food Kitchen Captain,
John B Connally Unit, sued in their individual and official capacity; Debra
Gloor, Medical Supervisor, John B. Connally Unit, sued in their individual
and official capacity; Lorie Davis, TDCJ Director, sued in their
individual and official capacity; UTMB Director, sued in their individual
and official capacity; Doctor FNU Wong, Ophthalmologist Eye Doctor,
sued in their individual and official capacity; Sylvia L. Peterson, Law
Library Supervisor, John B. Connally Unit, sued in their individual and
official capacity; FNU Alexander, Captain, John D. Connally Unit,
sued in their individual and official capacity; FNU Wolf, Lieutenant, John
B. Connally Unit, sued in their individual and official capacity; FNU
Rodas, Lieutenant, John B. Connally Unit, sued in their individual and

United States Court of Appeals
Fifth Circuit
FILED
December 11, 2020

Lyle W. Cayce
Clerk
Case: 20-50668 Document: 00515671037 Page: 1 Date Filed: 12/11/2020

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official capacity; Pauline Dancy, Lieutenant, John B. Connally Unit,
sued in their individual and official capacity,

Defendants—Appellees.

Appeal from the United States District Court
for the Western District of Texas
USDC No. 5:20-CV-779

Before Clement,* Elrod, and Haynes, Circuit Judges.
Per Curiam:*
Jerry Wanzer, Texas prisoner #855976, moves for leave to proceed in
forma pauperis to appeal the district court’s dismissal of his 42 U.S.C. § 1983
complaint under the three-strikes provision of 28 U.S.C. § 1915(g). Section
1915(a) permits “any court of the United States” to “authorize the
commencement . . . of any suit . . . without prepayment of fees or security
therefor.” 28 U.S.C. § 1915(a).
Generally, a prisoner bringing or appealing a civil action may not
proceed in forma pauperis if the prisoner has previously brought three civil
actions or appeals that were dismissed as frivolous or malicious or for failure
to state a claim. § 1915(g). A prisoner may circumvent this bar if “the
prisoner is under imminent danger of serious physical injury.” Id. Wanzer
has previously filed at least three civil actions and appeals that were dismissed
as frivolous. Wanzer v. Chu, 168 F. App’x 898, 899 (5th Cir. 2006)
(dismissing appeal as frivolous); Wanzer v. Pfeil, 2006 WL 2595764, No.
5:05-CV-616, at *1 (W.D. Tex. June 26, 2006) (dismissing complaint as

*
Judge Clement would deny the request to proceed in forma pauperis.
*
Pursuant to 5th Circuit Rule 47.5, the court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5th Circuit Rule 47.5.4.
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No. 20-50668
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frivolous); Wanzer v. White, No. 6:92-CV-27 (E.D. Tex. May 22, 1992)
(dismissing complaint as frivolous). Thus, he can only proceed in forma
pauperis in the district court or before this court if he is “under imminent
danger of serious physical injury.” § 1915(g).
Wanzer alleges that he is being denied medical treatment and is being
forced to drink contaminated water. Wanzer specifically alleges that, as a
result, he has severe chest pains and a sore throat, that he at times coughs up
blood, and that he is going blind in his left eye from an untreated cataract.
While the district court characterized these medical claims as “past
events” that do not support an inference of “imminent” harm, Wanzer
alleges serious ongoing symptoms and hence “imminent danger of serious
physical injury.” Cf. Camp v. Putnam, 807 F. App’x 303, 306-07 (5th Cir.
2020) (determining that “specific allegations of unsanitary living conditions,
food contamination, and chronic illness” were more than “mere conclusions
and threadbare allegations regarding the imminent danger of serious physical
injury”). Construing Wanzer’s pro se pleadings liberally, as we must, we
determine that Wanzer’s “allegations warrant a determination that he is
under imminent danger of serious physical injury.” Erickson v. Pardus, 551
U.S. 89, 94 (2007); King v. Steven, 282 F. App’x 396, 396 (5th Cir. 2010).
Wanzer’s motion for leave to proceed in forma pauperis on appeal is
GRANTED. We VACATE the judgment of the district court denying in-
forma-pauperis status and dismissing the complaint and REMAND for
further proceedings consistent with this opinion.
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