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Darnell Wesley Moon v. Wendy J. Roal

September 26, 2012

DARNELL WESLEY MOON, PLAINTIFF,
v.
WENDY J. ROAL, FERNANDO CASTILLO, S. JULIAN, J. PARENT, WINKLEMEYER,*FN1 AND THE UNITED STATES OF AMERICA, DEFENDANTS.



The opinion of the court was delivered by: Michael J. Reagan United States District Judge

MEMORANDUM AND ORDER

REAGAN, District Judge:

Plaintiff, currently incarcerated at USP-Marion ("Marion"), has brought this pro se civil rights action for alleged violations of his constitutional rights by persons acting under the color of federal authority. See Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971). He also asserts claims under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 1346(b); § 2671 et seq., and the Administrative Procedures Act, 5 U.S.C. 701 et seq.

Specifically, Plaintiff states that for many months he has been suffering from severe and ongoing pain, swelling, and restriction of movement in his left arm. Plaintiff was diagnosed with calcific bursitis in 2008, and his arm was broken in 2010 when Plaintiff was assaulted by a guard in USP-Terre Haute (Doc. 1, pp. 8-9). After the fracture, the same arm was hurt again in another incident, but Plaintiff was never provided with any medical attention following that injury. He was transferred to Marion on January 9, 2012, and the condition of his arm has become steadily worse. However, his requests for pain medication and for examination of the arm have been ignored by Defendants Castillo (a physician's assistant) and Julian (the Associate Warden of Operations), despite his assertion that at one point, the arm was swollen to twice its normal size (Doc. 1, pp. 9-10).

In addition to his claim of deliberate indifference to serious medical needs, Plaintiff contends that Defendants are liable under the FTCA and the Federal Administrative Procedures Act, for breach of duty, medical malpractice, and gross medical negligence, because of their failure to provide him with medical care (Doc. 1, p. 11).

Plaintiff also complains that the staffing levels at Marion are inadequate to ensure that inmates in the Communications Management Unit ("CMU"), where he is housed, will have access to medical and dental care, particularly in the case of an emergency (Doc. 1, pp. 10-12). Plaintiff seeks declaratory and injunctive relief, as well as compensatory and punitive damages (Doc. 1, p. 15).

Motion for Leave to Proceed In Forma Pauperis

Plaintiff discloses that he has had three prior civil actions dismissed as legally frivolous*fn2 (Doc. 1, pp. 3, 7), yet he has filed a motion for leave to proceed in forma pauperis ("IFP") (Doc. 2). Because Plaintiff has previously accumulated at least three "strikes" within the meaning of 28 U.S.C. § 1915(g),*fn3 this Court must determine whether he is "under imminent danger of serious physical injury," such that this action should be allowed to proceed without full pre-payment of the filing fee, despite the fact that Plaintiff has "struck out."

The United States Court of Appeals for the Seventh Circuit has explained that "imminent danger" within the meaning of 28 U.S.C. § 1915(g) requires a "real and proximate" threat of serious physical injury to a prisoner. Ciarpaglini v. Saini, 352 F.3d 328, 330 (7th Cir. 2003) (citing Lewis v. Sullivan, 279 F.3d 526, 529 (7th Cir. 2002)). In general, courts "deny leave to proceed IFP when a prisoner's claims of imminent danger are conclusory or ridiculous." Id. at 331 (citing Heimermann v. Litscher, 337 F.3d 781, 782 (7th Cir. 2003)). Additionally, "[a]llegations of past harm do not suffice" to show imminent danger; rather, "the harm must be imminent or occurring at the time the complaint is filed," and when prisoners "allege only a past injury that has not recurred, courts deny them leave to proceed IFP." Id.at 330 (citing Abdul-Wadood v. Nathan, 91 F.3d 1023 (7th Cir. 1996)).

In the case at bar, Plaintiff's complaint contains allegations that lead the Court to conclude that he could be under imminent danger of serious physical injury. Although he describes past injuries to his left arm, the pain, swelling, and restricted movement are ongoing conditions which he contends have been made worse by the Defendants' refusal to provide medical attention.

It is therefore ORDERED that Plaintiff's motion for leave to proceed IFP in this case (Doc. 2) is GRANTED. Pursuant to 28 U.S.C. § 1915(b), IT IS ORDERED that Plaintiff shall pay the $350.00 filing fee applicable to this civil action as follows:

1. Plaintiff shall pay an initial partial filing fee of $5.28 . See 28 U.S.C. § 1915(b)(1). The agency having custody of Plaintiff is DIRECTED to transmit this amount from Plaintiff's prison trust fund account to the Clerk of Court upon receipt of this Memorandum and Order.

2. Plaintiff shall make monthly payments of 20% of the preceding month's income credited to Plaintiff's prison trust fund account until the filing fee is paid in full.

3. The agency having custody of Plaintiff shall forward payments from Plaintiff's account to the Clerk of this Court each time the amount in the account exceeds $10 until the filing fee is paid. Payments shall be mailed to: Clerk of the Court, United States District Court for the ...


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