United States District Court, W.D. Wisconsin
OPINION AND ORDER
D. PETERSON DISTRICT JUDGE.
Oscar Garner, a pro se litigant formerly incarcerated at
Waupun Correctional Institution (WCI), has filed a complaint
alleging that health-care providers at WCI failed to provide
him with consistent access to medication for his chronic
migraine headaches. Dkt. 1. Garner seeks 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). That means that at least three of his
prior lawsuits have been dismissed as frivolous, malicious,
or for failing to state a claim upon which relief may be
granted. See Garner v. Hill, No. 17-cv-51 (E.D. Wis.
filed Jan. 13, 2017); Garner v. Kirby, No. 14-cv-54
(W.D. Wis. filed Aug. 5, 2014); Garner v.
Huibregtse, No. 09-cv-301 (W.D. Wis. filed May 12,
2009). Once a prisoner has “struck out, ” he may
not bring a civil action in federal court without first
prepaying the filing fee. Garner was incarcerated at the time
he filed his complaint, so the three-strikes rule still
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). To meet
this requirement, a plaintiff must allege a physical injury
that is imminent or occurring at the time the complaint is
filed. Ciarpaglini v. Saini, 352 F.3d 328, 330 (7th
Cir. 2003). At the time Garner filed this complaint, he was
having problems getting his migraine medications and was
experiencing withdrawal-like symptoms as a result. These
allegations are sufficient to meet the imminent-danger
next step would ordinarily be for me to screen Garner's
complaint under 28 U.S.C. §§ 1915 and 1915A because
allegations of imminent danger require expedited review. But
court records indicate that Garner was recently released from
prison. This means that as of today's date, Garner is no
longer in imminent danger. I will therefore revert to this
court's normal procedures by ordering Garner to submit
the financial information that the clerk of court needs to
determine whether he qualifies for in forma pauperis status.
I will direct the clerk of court to send Garner a copy of the
application to proceed without prepaying fees or costs.
Garner should fill out that application and return it to the
court by the date specified below.
I would wait until the clerk of court has received
Garner's financial information to screen his complaint.
But I can already see problems with Garner's allegations
that, if not corrected, will prevent me from granting him
leave to proceed. Specifically, many of Garner's
allegations are too vague to provide fair notice of his
claims as required under Federal Rule of Civil Procedure 8.
So I will dismiss his complaint and give him an opportunity
to file an amended complaint that fixes the problems
discussed in this opinion. Once the court has received
Garner's financial information and his amended complaint,
I will screen the amended complaint under 28 U.S.C.
§§ 1915 and 1915A.
the following facts from Garner's complaint, Dkt. 1. I
accept his allegations as true at the screening stage.
Bonte v. U.S Bank, N.A., 624 F.3d 461, 463 (7th Cir.
suffers from severe migraines. In his complaint, he asserts
claims related to problems he has experienced in obtaining
three medications he takes for his migraines:
cyclobenzaprine, venlafaxine, and sumatriptan.
Garner was transferred to WCI from Wisconsin Secure Program
Facility in June 2018, he received his cyclobenzaprine
inconsistently. Then, in late June, his prescription for
cyclobenzaprine was discontinued. It was not reinstated until
July 25, after Garner was evaluated in the health service
unit (HSU) clinic by defendant Tapio, a nurse practitioner.
Tapio renewed Garner's prescription at that appointment,
but apparently it took another two weeks for the order of
cyclobenzaprine to arrive at WCI.
ran out of cyclobenzaprine again in August. On August 29, he
complained to the HSU manager, C. Marchant, that he had been
without the medication for more than ten days. It appears
that Garner received additional cyclobenzaprine a short time
January 2013, Garner again complained to HSU that his
cyclobenzaprine had been discontinued. It is not clear how
WCI responded to his complaints, or what the status of
Garner's cyclobenzaprine prescription was at the time he
filed his complaint.
Garner was also having problems getting venlafaxine, another
headache medication. In June 2018, he complained to HSU that
he was not receiving venlafaxine and that the lack of
medication was triggering headaches. Tapio told Garner that
venlafaxine had been ordered for him. It appears from the
records attached to the complaint that HSU began dispensing
venlafaxine to Garner a few days later. Garner then
complained that he was not ...