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Almond v. Cheaster

United States District Court, E.D. Wisconsin

September 6, 2016

DWAYNE ALMOND, Plaintiff,
v.
WARDEN, DR. CHEASTER, MS. WATTS, NURSE PRINCE, NURSE VAUD, NURSE WOODDARD, CAPTAIN BRICK, and SGT. NUNN, Defendants.

          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 RISK DISMISSAL

          HON. PAMELA PEPPER United States District Judge.

         The 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.

         Under 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).

         The 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.

         In 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.

         According 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.

         The 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.

         Because 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.

         Plaintiff's Debt to the Court

         Not including this case, the plaintiff owes the following money to the court from prior cases he has filed in this district[1]:

(1) $769.81, Case No. 1:08-cv-546-WCG & Appeal ...

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