United States District Court, W.D. Wisconsin
OPINION & ORDER
D. PETERSON DISTRICT JUDGE.
plaintiff Hakim Naseer, a prisoner currently incarcerated at
the Wisconsin Secure Program Facility, has filed this civil
lawsuit under 42 U.S.C. § 1983 alleging that he suffers
severe pain in his head and that the food services manager is
denying him vitamin-C-enriched beverages. Naseer seeks leave
to proceed in forma pauperis, but he has
“struck out” under 28 U.S.C. § 1915(g),
which means that he cannot obtain indigent status under
§ 1915 in any suit he files during the period of his
incarceration unless he alleges facts in his complaint from
which an inference may be drawn that he is in imminent danger
of serious physical injury. Naseer has also filed motions for
temporary restraining orders against prison library staff.
considering Naseer's submissions, I will dismiss his
complaint because it is unclear whether he satisfies the
imminent-danger exception to § 1915(g) and whether his
claims belong in the same lawsuit. I will give Naseer a
chance to file an amended complaint addressing these issues.
In addition, I will give him a short time to submit an
initial partial payment of the filing fee for this case, and
I will deny his motions for injunctive relief.
Sufficiency of the complaint
seeks leave to proceed in forma pauperis in this
case. However, as stated above, he has “struck
out” under 28 U.S.C. § 1915(g). This provision
reads as follows:
In no event shall a prisoner bring a civil action or appeal a
judgment in a civil action or proceeding under this section
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.
least three prior occasions, Naseer has brought actions that
were dismissed because they were frivolous, malicious, or
failed to state a claim upon which relief may be granted.
Naseer v. Neumaier, No. 10-cv-399-bbc (W.D. Wis.
Sept. 29, 2010); Naseer v. Belz, No. 10-cv-27-bbc;
(W.D. Wis. Feb. 16, 2010); Naseer v. Trumm, No.
09-cv-699-bbc (W.D. Wis. Dec. 11, 2009). Therefore, he cannot
proceed in forma pauperis in this case unless I
conclude that his allegations show that he is in imminent
danger of serious physical injury.
the imminent-danger requirement of 28 U.S.C. § 1915(g),
a prisoner must allege a physical injury that is imminent or
occurring at the time the complaint is filed and show that
the threat or prison condition causing the physical injury is
“real and proximate.” Ciarpaglini v.
Saini, 352 F.3d 328, 330 (7th Cir. 2003) (citing
Heimermann v. Litscher, 337 F.3d 781 (7th Cir.
2003); Lewis v. Sullivan, 279 F.3d 526, 529 (7th
Cir. 2002)). At this point, Naseer's allegations are too
vague to tell whether he meets the relatively low bar
required to meet the “imminent danger” standard.
Ciarpaglini, 352 F.3d at 331 (It is improper to
adopt a “complicated set of rules [to discern] what
conditions are serious enough” to constitute
“serious physical injury.”).
says that his “neurons system in [his] brain is
shutting down, ” that his symptoms are getting worse,
and that he suffers excruciating pain every time he attempts
to shampoo his head. See Dkt. 1, at 3. But although
he names serval nurses as defendants, he does not actually
say that any of them or any other medical professional at
WSPF is denying him medical treatment. Without Naseer
alleging that the medical staff is violating his rights, I
cannot conclude that he is bringing imminent-danger claims
under § 1915(g).
alleges that defendant Food Services Manager Ms. Neuroth is
denying his vitamin-C-enriched beverages, but it is unclear
how this deprivation is related to his head problem, and I am
not convinced that the deprivation of these beverages alone
is enough to meet the imminent-danger standard, without
further explanation from Naseer.
give Naseer a chance to submit an amended complaint
explaining his claims in more detail. Naseer should draft his
amended complaint as if he were telling a story to someone
who knows nothing about his situation. In particular, he
should explain whether he is receiving medical treatment for
his head, how the lack of beverages harming him, and what
each defendant has done or failed to do that makes him
believe that the defendant violated his rights. He should
also explain what his head problems and beverage issue have
to do with one another. If those issues are unrelated to each
other, he may have to choose whether to pursue each set of
claims in a separate lawsuit.
Initial partial payment
had I concluded that Naseer qualified for in forma
pauperis status, he would still need to make an initial
partial payment of the filing fee. The initial partial payment
is calculated by using the method established in § 1915
by figuring 20 percent of the greater of the average monthly
balance or the average monthly deposits to the
plaintiff's trust fund account statement. From the trust
fund account statement provided by Naseer, I calculate his
initial partial payment to be $0.94. If Naseer does not have
the money in his regular account to make the initial partial
payment, he will have to arrange with prison authorities to
pay some or all of the assessment from his release account.
This does not mean that Naseer is free to ask prison
authorities to pay his entire filing fee from his release
account. Naseer should show a copy of this order to prison
officials to ensure that they are aware that they should send
the initial partial payment to this court.
Motions for ...