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Reginald Lockett v. Wexford Health Sources

December 5, 2011

REGINALD LOCKETT, PLAINTIFF,
v.
WEXFORD HEALTH SOURCES, INC., ET AL., DEFENDANTS.



The opinion of the court was delivered by: Sue E. Myerscough, U.S. District Judge:

E-FILED

Monday, 05 December, 2011 04:11:09 PM

Clerk, U.S. District Court, ILCD

OPINION

Plaintiff is currently incarcerated in Western Illinois Correctional Center. He alleges that the soy in the prison food is making him sick. Plaintiff originally filed this case in the Northern District of Illinois in August, 2010. Pursuant to a motion to transfer venue, the case was transferred to this District the following April and assigned to Judge Baker.

On May 11, 2011, Judge Baker directed Plaintiff to: "a) show good cause why his petition for leave to proceed in forma pauperis should not be revoked for falsely stating in his Complaint that he had filed only two prior cases when in fact he has struck out under 28 U.S.C. § 1915(g); and, b) explain how he is in 'imminent danger of serious physical injury' within the meaning of 28 U.S.C. § 1915(g), an exception to the three strike rule." Judge Baker directed Defendants to file a motion for summary judgment addressing whether Plaintiff meets the imminent danger exception in 28 U.S.C. § 1915(g). That summary judgment motion is now before the Court.

For the reasons below, the Court concludes that Plaintiff is not in imminent danger of serious physical injury. Accordingly, he cannot proceed in forma pauperis in this action.

ANALYSIS

Plaintiff is barred from proceeding in forma pauperis unless he is in "imminent danger of serious physical injury." 28 U.S.C. § 1915(g). As Judge Baker recounted in his prior order, the Seventh Circuit has stated:

In order to meet the imminent danger requirement of 28 U.S.C. § 1915(g), the "threat or prison condition [must be] real and proximate." Lewis v. Sullivan, 279 F.3d 526, 529 (7th Cir.2002). Allegations of past harm do not suffice; the harm must be imminent or occurring at the time the complaint is filed. Heimermann v. Litscher, 337 F.3d 781 (7th Cir.2003). Before denying leave to proceed IFP, courts must review a frequent filer's well-pled allegations to ensure that the prisoner is not in imminent danger. Rivera v. Allin, 144 F.3d 719, 726 (11th Cir.1998).

Ciarpaglini v. Saini, 352 F.3d 328, 330 (7th Cir. 2003)(undisputed allegations that denial of psychiatric medicine was causing panic attacks sufficient to satisfy imminent danger exception).

The Court must resolve a dispute over the imminent danger exception. Taylor v. Watkins, 623 F.3d 483, 485-86 (7th Cir. 2010). "If a defendant contests a plaintiff's imminent-danger allegations, . . . the court must determine the allegations' credibility, either by relying on affidavits or depositions or by holding a hearing." Id. at 485. A court need not "blindly accept a prisoner's allegations of imminent danger" if those allegations are disputed. Id. Blind acceptance would enable "easy evasion of the three-strikes rule." Id. at 486. However, the Court does not "evaluate the seriousness of a plaintiff's claims" or engage in a "full-scale merits review, though in many cases, . . ., the allegations of imminent danger are linked to the allegations underlying the suit." Id.

Plaintiff alleges that he is suffering irreparable harm from the soy in the prison food. (Amended Complaint, ¶ 5). He alleges "fainting, irritable bowel syndrome, fatigue, vomiting, pain after eating, passing out, severe constipation and/or diarrhea." (d/e 77, p. 6). He also alleges hypothyroidism, panic attacks, low-body temperature, "brain fog," and weight gain. (d/e 77, p. 11). The medical records show that Plaintiff has repeatedly complained to medical staff of constipation, stomach and other intestinal problems and has repeatedly asked the medical professionals to prescribe him a soy-free diet. Plaintiff has not been prescribed a soy-free diet, but has been provided Maalox or Mylanta and Zantac for possible gastroesophageal reflux disease or peptic ulcer disease. Plaintiff has also received Milk of Magnesia for his reported constipation.

Defendants point out that the U.S. Food and Drug Administration officially recognizes that an intake of at least 25 grams of soy protein per day is beneficially associated with a reduced risk of coronary heart disease. 21 C.F.R. ยง 101.82(c)(G)(permitting health claims that soy may reduce the risk of heart disease, with caveat that "the daily dietary intake level of soy protein that has been associated with reduced risk of coronary heart disease is 25 grams (g) or more per day of soy protein."). The amount of soy in the Plaintiff's daily diet is not in the record, ...


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