United States District Court, W.D. Wisconsin
LARRY J. BROWN, Plaintiff,
JON E. LITSCHER, JAMES GREER, MICHAEL A. DITTMAN, JAMIE GOHDE, TRISHA ANDERSON, S. SCHMIDTKNECHT, PAMELA SCHMIDT, D. MORGAN, MARGARET KIECA, LINDA O'DONOVAN, GLORIA MARQUARDT, WELCOME ROSE, and CINDY O'DONNELL, Defendants. LARRY J. BROWN, Plaintiff,
LINDSAY WALKER, TIM DETERS, L. WOOD, M. NAVARRO, TRISHA ANDERSON, C/O CHATMAN, C/O GWEN SCHULTZ, C/O CICHANOWICZ, and C/O LUCAS WEBER, Defendants.
WILLIAM M. CONLEY DISTRICT JUDGE.
se plaintiff Larry J. Brown filed these civil lawsuits
pursuant to 42 U.S.C. § 1983. In Case No. 17-cv-575 (the
“‘575 case”), he claims that defendants
violated his constitutional rights for their part in denying
him a lower bunk restriction to address his various
musculoskeletal disorders between 2015 and 2017. In Case No.
18-cv-131 (the “‘131 case”), he claims that
defendants denied him a recovery bed after surgery in July
2017 for a hiatal hernia in violation of his rights under the
Eighth Amendment, and that the denial of the bed was in
retaliation of his earlier complaints about deliberate
indifference to his chest and stomach pain. In both cases,
the court denied Brown leave to proceed without payment of
the full $400 filing fee, pursuant to 28 U.S.C. §
1915(g), which sets forth that if three or more of a
prisoner's civil actions or appeals have already been
dismissed while imprisoned as frivolous, malicious, or for
failure to state a claim upon which relief may be granted,
that prisoner is not allowed to bring a civil action in
federal court without first paying the full filing fee.
Specifically, the court concluded that: (1) on at least three
occasions, Brown had brought actions that were dismissed as
frivolous, malicious or failed to state a claim, and (2) none
of his allegations supported an inference that he is in
imminent danger of serious physical injury. (No. 18-cv-131,
dkt. #7; No. 17-cv-575, dkt. #10.) Accordingly, the court
gave Brown until April 3, 2019, to submit the full $400
filing fee in both cases. Rather than paying the full filing
fee in either case, Brown filed motions for reconsideration
(No. 18-cv-131, dkt. #8; No. 17-cv-575, dkt. #11), which will
identical motions, Brown does not attempt to contradict the
court's findings that § 1915(g) applies to both
lawsuits, nor does he take issue with the court's finding
that he failed to allege facts suggesting that he is
currently in imminent danger of serious harm. Instead, Brown
claims that the court should have consolidated both the
‘131 and ‘575 cases with Brown's ongoing
case, Brown v. Thorne, No. 17-cv-073 (W.D. filed
Feb. 1, 2017) (the “‘073 case”). In the
'73 case, the court found that Brown satisfied the
imminent danger showing as to one Eighth Amendment claim
related to defendants' allegedly ongoing failure to heed
the University of Wisconsin specialists' recommended
accommodations for Brown's hiatal hernia. Id.,
dkt. #17, at 5-6. However, the court denied Brown leave to
proceed without prepayment of the $400 filing fee on any
other claim, since his other claims did not suggest that he
was otherwise in imminent danger of serious harm.
Id. at 6.
insists that consolidation is appropriate because the events
from all three complaints arose during the same period of
time. That much is true, and the court further observes that
these three cases have a few common defendants and generally
relate to how prison officials have handled his various
medical needs. Nonetheless, the court declines to exercise
its discretionary authority to consolidate these actions,
see Fed. R. Civ. P. 42(a), because the fact remains
that all of Brown's proposed claims in the ‘131 and
‘575 cases involve past harm related to those
medical issues, with no suggestion that at the time he filed
the complaint he faced imminent danger of serious physical
injury. Therefore, even if the court consolidated the cases,
Brown would have only been allowed to proceed
without paying the full filing fee on the specific claim from
the ‘73 case that at the time he filed his
complaint, Brown was not receiving appropriate
accommodations for his hiatal hernia. See Ciarpaglini v.
Saini, 352 F.3d 328 (7th Cir. 2003) (to meet the
imminent danger requirement of § 1915(g), the danger
must be “imminent or occurring at the time the
complaint is filed, ”). Accordingly, the court will not
consolidate these three cases, and will deny Brown's
motions for reconsideration. Finally, the court will dismiss
cases ‘181 and ‘575 without prejudice, due to
Brown's failure to pay the filing fee by the April 3,
Plaintiff Larry Brown's motions for reconsideration (No.
18-131, dkt. #8; No. 17-cv-575, dkt. #11) are DENIED.
Since Brown has failed to pay the full filing fee as required
under 28 U.S.C. § 1915(g) to proceed, both of these
actions are DISMISSED without prejudice.
clerk's office is directed to close these cases. Entered
this 15th day of April, 2019.
 At Brown's request, that matter
has been stayed pending his June 2019 release from
incarceration. See Brown, No. 17-cv-73, dkt. #39.
Even though this indicates that Brown is no longer in
imminent danger, this claim has not been rendered moot.
Ciarpaglini, 352 F.3d at 330 (finding that §
1915(g) does not limit claims to prospective relief, and