United States District Court, E.D. Wisconsin
DECISION AND ORDER DENYING PLAINTIFF'S MOTION FOR
LEAVE TO PROCEED IN FORMA PAUPERIS (DKT. NO. 3) AND DIRECTING
PLAINTIFF TO PAY $400 FILING FEE BY SEPTEMBER 30, 2016, OR
PAMELA PEPPER United States District Judge.
plaintiff is a pro se prisoner. He has filed a
complaint under 42 U.S.C. §1983, Dkt. No. 1, along with
a motion for leave to proceed in forma pauperis,
Dkt. No. 3.
the Prison Litigation Reform Act (PLRA) of 1996, a prisoner
may not bring a civil action or appeal a civil judgment
in forma pauperis,
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.
28 U.S.C. §1915(g). When determining whether a prisoner
has acquired three “strikes” under §1915(g),
the court must consider prisoner actions dismissed on any of
the three enumerated grounds both before and after enactment
of the PLRA. Evans v. Ill. Dep't of Corr., 150
F.3d 810, 811 (7th Cir. 1998).
plaintiff has accumulated several “strikes”: (1)
Almond v. Wisconsin, et al., Case No. 06-C-447-C
(W.D. Wis.); (2) Almond v. Wisconsin, Case No.
06-C-448-C (W.D. Wis.); (3) Almond v. Wisconsin,
Case No. 06-C-449-C (W.D. Wis); and Almond v.
Glinski, Case No. 14-CV-1336-pp (E.D. Wis.). Although
the plaintiff has more than three strikes, he states in his
complaint in this case (as he has in some previous cases)
that he is “in imminent danger of serious physical
injury.” Dkt. No. 1 at 2. Thus, the court must
determine whether the complaint contains allegations that
support the existence of factors of §1915(g)'s
imminent danger exception.
order to meet the imminent danger requirement of 28 U.S.C.
§1915(g), a plaintiff must allege a physical injury that
is imminent or occurring at the time the complaint is filed,
and the threat or prison condition causing the physical
injury must be real and proximate. Ciarpaglini v.
Saini, 352 F.3d 328, 330 (7th Cir. 2003) (citing
Lewis v. Sullivan, 279 F.3d 526, 529 (7th Cir. 2002)
and Heimermann v. Litscher, 337 F.3d 781 (7th Cir.
2003)). Courts deny leave to proceed in forma
pauperis under §1915(g) when a prisoner alleges
only a past injury that has not recurred. See
Ciarpaglini, 352 F.3d at 330 (citations omitted). In
addition, courts deny leave to proceed in forma
pauperis when a prisoner's claims of imminent danger
are “conclusory or ridiculous.” Id.
(citing Heimermann v. Litscher, 337 F.3d at 782
(contesting one's conviction and complaining of
inadequate protection two years previously is not imminent
danger); Martin v. Shelton, 319 F.3d 1048, 1050 (8th
Cir. 2003) (working in inclement weather twice is not
imminent danger); White v. Colorado, 157 F.3d 1226,
1231 (10th Cir. 1998) (“vague and conclusory”
assertions of withheld medical treatment when prisoner was
seen over 100 times by physician is not imminent danger)).
Section 1915(g) is not used to determine the merits of a
claim, however, because “[t]his would result in a
complicated set of rules about what conditions are serious
enough, all for a simple statutory provision governing when a
prisoner must pay the filing fee for his claim.”
Ciarpaglini, 352 F.3d at 331.
to the complaint, the defendants deprived the plaintiff of
his doctor-prescribed pain medication Naproxen from April 27,
2016, through May 11, 2016. The plaintiff alleges that he
needed the pain medication for his chronic, serious pain. He
seeks compensatory damages for his pain and suffering.
facts that gave rise to the plaintiff's allegations took
place over a month before the date on which he filed his
petition, and almost three months before he filed his motion
to proceed without prepaying the filing fee. He does not
indicate that he is at risk of not getting his medication
again in the future, and he only seeks compensatory relief.
The court concludes that the allegations in the complaint do
not support the plaintiff's assertion that he is under
imminent danger of serious physical injury. See
Ciarpaglini, 352 F.3d at 330.
court finds that the plaintiff has incurred more than three
strikes, and has not demonstrated that he is in imminent
danger of serious physical injury, the plaintiff must pay the
$400 filing fee if he wants to proceed. If the plaintiff does
not pay the filing fee by September 23, 2016, the court will
dismiss this case.
Debt to the Court
including this case, the plaintiff owes the following money
to the court from prior cases he has filed in this
(1) $769.81, Case No. 1:08-cv-546-WCG & Appeal ...