United States District Court, W.D. Wisconsin
OPINION & ORDER
D. PETERSON DISTRICT JUDGE.
plaintiff and prisoner Johnny Lacy, Jr. has filed a complaint
about his medical care at the Wisconsin Secure Program
Facility and he seeks leave to proceed in forma
pauperis under 28 U.S.C. § 1915. Because Lacy is
subject to the filing restrictions in § 1915(g) and his
allegations do not show that he is in imminent danger, I am
denying his request without prejudice. But I will give him an
opportunity to either (1) pay the filing fee in full or (2)
file an amended complaint that fixes the problems discussed
in this order.
complaint in this case is governed by 28 U.S.C. §
1915(g), which provides:
In no event shall a prisoner bring a civil action or appeal a
judgment in a civil action or proceeding under this section
[28 U.S.C. § 1915] 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.
provision applies to Lacy because a federal court has
dismissed as legally frivolous at least three cases that he
has filed in the past. Lacy v. Buchler, No. 93-C-889
(E.D. Wis. Aug. 1, 1994); Lacy v. McCaughtry, No.
93-C-657 (E.D. Wis. May 4, 1994); Lacy v. Malloy,
No. 93-C-944 (E.D. Wis. June 10, 1994). See also Lacy v.
Cole, No. 11-cv-1084, 2012 WL 441284, at *1 (E.D. Wis.
Feb. 10, 2012) (noting that 1915(g) applies to Lacy). Thus,
in any case that Lacy files in federal court, he must either
pay the filing fee in full or show that he is “under
imminent danger of serious physical injury.” Lacy has
not paid the filing fee, so he must show that he is in
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), and Lewis v.
Sullivan, 279 F.3d 526, 529 (7th Cir. 2002)).
“[I]f the danger ha[s] passed when the suit [i]s filed
the imminent-danger exception is inapplicable; the suit lacks
the urgency that would justify allowing the prisoner who has
accumulated three strikes to proceed in forma
pauperis.” Fletcher v. Menard Corr. Ctr.,
623 F.3d 1171, 1174-75 (7th Cir. 2010).
allegations in Lacy's complaint are serious, even
shocking. Lacy says that he suffers from diabetes and his
foot had to be amputated in January 2018 because defendants
disregarded his complaints about severe foot pain for several
weeks. But those allegations do not qualify for the imminent
danger exception because they relate to past conduct that no
longer poses a threat. Lacy does not allege either that he is
suffering from complications as a result of the amputation or
that he faces any danger of additional amputations.
includes one sentence at the end of his complaint that
“HSU-Staff don't want to help [him] wash or change
the dressing” for his wound. Dkt. 1, at 5. But that
allegation is simply too vague to support a finding of
imminent danger. For example, Lacy doesn't explain what
he means that staff “don't want to” help him.
Does that mean that they are helping him, but only doing so
reluctantly or that they are refusing outright? And if they
are refusing outright, is Lacy unable to clean and dress the
wound himself? Because Lacy does not allege that he is
actually being subjected to unsanitary conditions, he has not
alleged that he is in imminent danger.
even if I could infer that Lacy was in imminent danger, this
claim would have another problem, which is that Lacy
doesn't identify the staff members involved. The three
defendants included in the caption are the medical staff
members who allegedly failed to treat Lacy's foot before
it needed to be amputated. Lacy does not allege that the same
staff members are refusing to provide clean dressing for his
wound. Because a defendant cannot be held liable for a
constitutional violation unless he or she was personally
involved in the alleged conduct, Gentry v.
Duckworth, 65 F.3d 555, 561 (7th Cir. 1995), I cannot
allow Lacy to proceed on the claim regarding treatment for
his wound in the absence of allegations that a particular
defendant named in the caption is responsible.
has two options if he wishes to proceed with the case. He
must either pay the filing fee in full or file an amended
complaint that shows he is in imminent danger and states a
claim upon which relief may be granted under federal law. If
he fails to do either of those things, I will dismiss the
Plaintiff Johnny Lacy, Jr.'s request to proceed in
forma pauperis is DENIED without prejudice in accordance
with 28 U.S.C. § 1915(g). Lacy may have until April 18,
2018, to either (1) pay the $400 filing fee in full or (2)