United States District Court, W.D. Wisconsin
OPINION AND ORDER
BARBARA B. CRABB DISTRICT JUDGE
plaintiff Michael Scott is incarcerated at the Green Bay
Correctional Institution. He filed this proposed civil action
under 42 U.S.C. § 1983, contending that he has received
inadequate treatment for a skin rash. He has requested leave
to proceed without prepayment of the filing fee, but as he
acknowledges in his complaint, he has “struck
out” under 28 U.S.C. § 1915(g). Under §
1915(g), a prisoner is not allowed to bring a civil action in
federal court without first paying the fee, if three or more
of his civil actions or appeals have been dismissed as
frivolous, malicious or for failure to state a claim upon
which relief may be granted. The sole exception to the
three-strikes rule is if the plaintiff's pleadings show
that he is in imminent danger of serious physical injury. 28
U.S.C. § 1915(g).
records confirm that plaintiff has filed at least three
previous civil actions while imprisoned that were dismissed
as frivolous or for failure to state a claim. Scott v.
Aurora Sinai, 09-C-745 (E.D. Wis. Sept. 23,
2009); Scott v. McCabe, 10-cv-138- bbc (W.D. Wis.
Apr. 26, 2010); Scott v. Columbia Correctional
Institution, 11-cv-384-bbc (W.D. Wis. July 7, 2011).
Consequently, plaintiff may not proceed with this action
without prepaying the fees unless he shows that he is in
imminent danger of serious physical injury. After reviewing
plaintiff's complaint, I conclude that he may not proceed
at this time because his complaint does not allege that he is
in imminent danger. In fact, his complaint is too vague to
satisfy the pleading requirements of Federal Rule of Civil
Procedure 8. Therefore, I am dismissing his complaint and
giving him an opportunity to file an amended complaint that
explains his claims more clearly.
acknowledges in his complaint that he must plead facts
supporting a finding of imminent danger of serious physical
injury. Nonetheless, he has failed to do so. Plaintiff
alleges in his complaint that he has a skin rash that itches,
stings, burns and peels. However, he does not allege that he
has been denied treatment for his rash, but rather that there
was a delay in processing his prescription for ointment. He
also alleges that he is not permitted to keep the ointment in
his cell, so he has to wait for the ointment to be delivered
to his cell twice a day. Finally, he alleges that he
requested that pictures be taken of his rash, but health
services staff refused to take pictures.
allegations do not suggest that plaintiff is in imminent
danger of serious physical injury sufficient to invoke the
exception provided in § 1915(g). Plaintiff admits he has
been provided some treatment for his rash and has not
suggested that his rash presents a “genuine
emergency” or a “real and proximate” threat
of serious harm. Heimermann v. Litscher, 337 F.3d
781, 782 (7th Cir. 2003). In fact, plaintiff's primary
complaint seems to be that prison staff refused to take
pictures of his rash. In his request for relief, plaintiff
asks that the court order DOC to take such pictures. However,
staff members' failure to take pictures does not present
a risk of imminent danger.
plaintiff has not met the imminent danger standard, at this
stage I normally would instruct plaintiff to submit the $400
filing fee so his complaint could be screened under §
1915A. However, because plaintiff's allegations are so
confusing and vague, I would dismiss his complaint
immediately under Federal Rule of Civil Procedure 8 even if
he submitted the $400 filing fee.
Rule 8, plaintiff is required to provide fair notice of his
claims to each defendant and set out claims that are
plausible on their face. Appert v. Morgan Stanley Dean
Witter, Inc., 673 F.3d 609, 622 (7th Cir. 2012);
Bausch v. Stryker Corp., 630 F.3d 546, 559 (7th Cir.
2010). Here, plaintiff's allegations are too confusing
and vague to provide fair notice of his claims against each
defendant. Although he says there was a delay in processing
his prescription apparently caused by defendant Nivas, he
provides no details about the delay, how Nivas caused it, how
the delay affected him or why he believes the delay violated
his rights. Likewise, he does not explain specifically what
action each individual defendant took that resulted in a
violation of his constitutional rights.
than give plaintiff the opportunity to pay the full filing
fee, then, I will give him an opportunity to file an amended
complaint that provides fair notice to defendants of the
claims he is asserting against them. Plaintiff should draft
the amended complaint as if he were telling a story to people
who know nothing about his situation. This means that someone
reading the complaint should be able to answer the following
(1) What is the nature of plaintiff's skin condition?
(2) What treatment has he received for his skin condition,
who provided it and when?
(3) Why does he believe defendants violated his rights with
respect to treatment of his skin condition?
(4) What did each individual defendant do that makes him or
her liable for failing to treat ...