United States District Court, E.D. Wisconsin
William C. Griesbach, Chief Judge.
David Elijah Bowers, Jr., an inmate who has incurred at least
three strikes under 28 U.S.C. § 1915(g), filed a civil
action pursuant to 42 U.S.C. § 1983, alleging an ongoing
violation of his civil rights. Bowers later filed an amended
complaint and a motion for leave to proceed without
prepayment of the filing fee, or in forma pauperis.
In his amended complaint, Bowers alleges that he has a
strangulated hernia and that the defendants are denying him
emergency surgery. Despite Bowers' restricted status, the
court screened his amended complaint given his allegations of
imminent harm. The court allowed Bowers to proceed on an
official capacity claim for injunctive relief against Tim
Lundquist and individual capacity claims against Lundquist
and Dr. Loyda Loria, and ordered the defendants to file a
response to Bowers' claim for immediate relief within
fourteen days. The defendants timely filed a response and
simultaneously moved the court to revoke Bowers' in
forma pauperis status. For the reasons that follow,
Bowers' request for immediate relief will be denied and
the defendants' motion will be granted.
defendants attach to their response a declaration from Dr.
Loria, who has been a physician at Wisconsin Resource Center
(WRC) since November 2007. See ECF No. 11. Dr. Loria
treated Bowers during his incarceration at WRC from
approximately November 29, 2018 until March 4, 2019, when
Bowers was released from prison. Id. at ¶ 6.
Dr. Loria attests that, on January 30, 2019, Bowers saw Dr.
Robert McDonald, a surgeon at Ascension Medical Group, who
determined that Bowers had a reducible (not strangulated)
inguinal hernia. Id. at ¶ 10; ECF No. 11-1 at
1. Dr. Loria explains that a reducible hernia does not pose
an immediate danger to a person's health and does not
require immediate surgery. ECF No. 11 at ¶ 10.
Loria further attests that Bowers was scheduled for an
elective surgery but that surgery was postponed because
Bowers developed thrombocytopenia (low blood platelet count)
with a high risk for bleeding. Id. at ¶ 10; ECF
No. 11-1 at 5. Dr. Loria spoke with Dr. Edwin, a hematologist
who saw Bowers for his thrombocytopenia, who agreed that
Bowers' surgery should be postponed until his platelet
count was up to 100, 000. ECF No. 11 at ¶ 10; ECF No.
11-1 at 1. On March 1, 2019, Dr. Loria discussed the reason
for the delay in surgery with Bowers, who informed Dr. Loria
that he was scheduled to be discharged on March 4, 2019. ECF
No. 11 at ¶ 11; ECF No. 11-1 at 1. Dr. Loria advised
Bowers to seek immediate medical attention if he has signs of
bleeding or pain on the left inguinal area and to follow up
with a physician to have a repeat complete blood count (CBC)
done to check his platelet count. ECF No. 11 at ¶ 11;
ECF No. 11-1 at 1.
Dr. Loria's declaration and the attached exhibits,
Bowers' request for immediate injunctive relief will be
denied. Contrary to Bowers' belief, the evidence shows
that his hernia is not strangulated and therefore does not
require immediate surgical intervention. Bowers has therefore
failed to demonstrate the existence of irreparable harm
necessary to obtain preliminary injunctive relief. See
Whitaker v. Kenosha Unified Sch. Dist. No. 1 Bd. of
Educ., 858 F.3d 1034, 1044 (7th Cir. 2017). Moreover,
ordering that surgery be performed would not be the least
intrusive means necessary to correct the violation of a
federal right. See 18 U.S.C. § 3626(a)(1)(A).
Such an order would also be ineffectual given that Bowers has
been discharged from the Department of Corrections (DOC).
Denial of Bowers' motion for immediate relief is
in forma pauperis status must also be revoked given
that his allegations of imminent harm are unfounded.
See 28 U.S.C. § 1915(g) (barring prisoners with
three strikes under subsection (g) from proceeding in
forma pauperis “unless the prisoner is under
imminent danger of serious physical injury”). Instead
of filing a certified copy of his institutional trust account
statement, as the court's previous order directed, Bowers
must now pay the full $400 filing fee (the sum of the $350
filing fee and the $50 administrative fee applicable to
litigants not proceeding in forma pauperis) within
fourteen days of the date of this order. See Newlin v.
Helman, 123 F.3d 429, 433-34 (7th Cir. 1997),
rev'd on other grounds by Walker v. O'Brien,
216 F.3d 626 (7th Cir. 2000) and Lee v. Clinton, 209
F.3d 1025 (7th Cir. 2000). Failure to timely pay the full
filing fee will result in dismissal of this action.
Bowers will receive notice of this order is unclear because
he has not notified the Clerk of any change of address since
his discharge from WRC. As a pro se litigant who is
not using the court's e-filing system, Bowers has the
responsibility to update the Clerk of his most current
address as a part of diligently prosecuting this action, and
failure to do so may result in dismissal. See Civil
L. R. 41(c). If Bowers notifies the court of a new address
within fourteen days, then the court will forward this order
to him and allow him fourteen additional days from the date
of his notification of a change of address to pay the $400
filing fee. If Bowers provides no such notification and fails
to pay the full filing fee within fourteen days, then this
action will be dismissed. Of course, if Bowers timely pays
the full filing fee, then he may proceed in pursuing his
IS THEREFORE ORDERED that the defendants' motion
to revoke Bowers' in forma pauperis status (ECF
No. 12) is GRANTED and Bowers' motion
for leave to proceed without prepayment of the filing fee
(ECF No. 6) is DENIED.
IS FURTHER ORDERED that Bowers must pay the full
$400 filing fee within fourteen days of the
date of this order. Failure to timely pay this ...