The opinion of the court was delivered by: Harold A. Baker United States District Judge
The plaintiff, a jail inmate, has filed three new lawsuits in one month claiming that his constitutional rights have been violated at the Tazewell County Jail. See Fletcher v. Huston, Case No. 07-1228; Fletcher v. Deathridge, Case No. 07-1231 and Fletcher v. Deathridge, Case No. 07-1245. The plaintiff has also filed a motion to proceed in forma pauperis in each case.
The court is required by 28 U.S.C. §1915A to "screen" the plaintiff's complaints, and through such process to identify and dismiss any legally insufficient claim, or the entire action if warranted. A claim is legally insufficient if it "(1) is frivolous, malicious, or fails to state a claim upon which relief may be granted; or (2) seeks monetary relief from a defendant who is immune from such relief." 28 U.S.C. §1915A.
The court also notes that the plaintiff has previously accumulated three strikes*fn2 pursuant to Title 28, United States Code, Section 1915, 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 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. 28 U.S.C. § 1915(g).
The "imminent danger"exception is reserved for "for genuine emergencies," where "time is pressing" and "a threat is real and proximate." Heimermann v. Litxcher, 337 F.3d 781 (7th Cir. 2003). See also Lewis v. Sullivan, 279 F.3d 526, 531 (7th Cir. 2002)(the potential consequence is "serious physical injury").
The plaintiff does not make clear reference to his three strikes status in his motions to proceed in forma pauperis or the body of his complaints. The plaintiff also does not make reference to all his former lawsuits when asked to list his litigation history on each standard complaint form. However, the plaintiff has indicated that he is bringing each lawsuit pursuant to 42 U.S.C.§1983 or 28 U.S.C.§1331 and the exception to the three strikes rule in 28 U.S.C. § 1915(g).
The plaintiff's complaint in Fletcher v. Huston, Case No. 07-1228 and his complaint in Fletcher v. Deathridge, Case No. 07-1231 are nearly identical. There are only two differences:1) the plaintiff lists Tazewell County Jail employees as defendants in Case No. 07-1228 and lists the United States Marshall and two employees as defendants in Case No. 07-1231; and 2) the plaintiff has added one additional count in Case No. 07-1231 stating that he informed the U.S. Marshal's about his problems and they took no action to have him transferred. Otherwise, the plaintiff has simply copied the same ten allegations in each complaint. No other changes have been made.
The court finds the two lawsuits to be repetitive. The court would ordinarily dismiss the second lawsuit filed. However, since the second lawsuit has one additional count, was filed within a week of the first lawsuit and there are no statute of limitations issues, the court will dismiss the first lawsuit filed, Fletcher v. Huston, Case No. 07-1228. The clerk will be instructed to add the defendants named in this lawsuit to Fletcher v. Deathridge, Case No. 07-1231.
Some of the allegations in Fletcher v. Deathridge, Case No. 07-1231, clearly do not meet the imminent danger exception. For instance, the plaintiff alleges that an officer made derogatory comments about him. The plaintiff also says he was exposed to the hazards of chewing and spitting tobacco in the jail. The plaintiff claims the defendants failed to check his blood pressure and an officer gave him an inhaler that was not prescribed for him. The plaintiff does not allege any injury or ongoing health problem as a result of these allegations. Not only do these allegations fail to demonstrate that the plaintiff was in imminent danger, but also the plaintiff has failed to state a claim upon which relief can be granted.
The plaintiff further claims the defendants repeatedly use pepper spray against him for no reason. The court notes that this claim is belied by the plaintiff's attachments to his complaint in Fletcher v. Deathridge, Case No. 07-1245. Tazewell County Jail employees have cited the plaintiff for numerous rule violations including disobeying direct orders, trying to create a disturbance, making threats to officers, possessing contraband and a wide variety of other violations. The plaintiff was repeatedly found guilty of these offenses and has not alleged that these findings have been overturned. Therefore, his claims concerning the use of pepper spray are barred by Heck v. Humphrey, 512 U.S. 477, 487 (1994) and Edwards v. Balisok, 520 U.S. 641 (1997).
The plaintiff does have one allegation that could meet the imminent danger exception and merit review standard. The plaintiff states that severe heat in a transport van and the use of pepper spray have sparked several severe asthma attacks and he has been denied medical treatment for his condition. Again, the attachments to the plaintiff's complaint are not very supportive of his own claims.*fn3
First, the plaintiff has attached a Detainee Request Form which states that the plaintiff was seen by a nurse on June 13, 2007. The nurse evaluated his respiratory system and determined that an inhaler was not needed. Second, a June 15, 2007 disciplinary report indicates that when jail staff contacted the doctor concerning the plaintiff's claims, the doctor stated that the plaintiff had refused to cooperate with medical staff on several occasions. Finally, a disciplinary report dated June 22, 2007 says the plaintiff was escorted to see the doctor for his complaints about asthma. The plaintiff stated he had several asthma attacks and was refused care. However, when he was asked for any details about his claims, he was unable to state when he had the alleged attacks. It is not clear, but the plaintiff may have received a disciplinary ticket for providing false information.
The court cannot say that the attachments wholly contradict the plaintiff's allegations. It is possible the plaintiff might still be able to make an argument that the defendants were deliberately indifferent to his serious health condition. Therefore, the court will find that this allegation meets the imminent danger exception and that the plaintiff has adequately alleged a violation of his Eighth Amendment rights for notice pleading standards. The plaintiff has failed to state any official ...