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Maurice J. Mcdonald, # B-42547 v. Lucas T. Maue

December 3, 2012


The opinion of the court was delivered by: J. Phil Gilbert United States District Judge


Plaintiff, currently incarcerated at Menard Correctional Center, has brought this pro se civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff is serving a life sentence for murder. Plaintiff claims that certain Defendants were deliberately indifferent to his serious medical condition, by their failure to comply with his post-surgery medical orders restricting his physical activity in order to avoid serious bleeding complications. He seeks damages, and requests the Court to issue a Temporary Restraining Order ("TRO") and preliminary injunction to protect him from future harm (Doc. 1, p. 23). Prior to filing this action, Plaintiff had "struck out" by having more than three lawsuits dismissed as frivolous, malicious, or for failure to state a claim.*fn1 See 28

U.S.C. § 1915(g). *fn2 However, he asserts that he should be allowed to proceed in this action without full prepayment of the filing fee because he is under imminent danger of serious physical injury.

More specifically, Plaintiff explains that he underwent hip surgery on October 9, 2012, during which an "angio-seal" was implanted in his femoral (thigh) artery (Doc. 1, p. 16). The surgeon instructed that Plaintiff was to refrain from any strenuous activity for 90 days, including no walking for long distances and no climbing stairs, and was to have the use of a wheelchair (Doc. 1, pp. 11, 16, 29). If the angio-seal were to become dislodged, Plaintiff could suffer fatal bleeding. Defendant Dr. Shepard failed to alert correctional staff of Plaintiff's special medical needs (Doc. 1, pp. 5, 21). When Plaintiff returned from the hospital on October 9, he was refused a wheelchair.

Plaintiff complains at length about Defendant Maue (a correctional officer). At some point, apparently well before Plaintiff's operations, Defendant Maue grabbed and fondled Plaintiff's genitals while searching him (Doc. 1, pp. 5, 13, 16, 20). Defendant Maue had also harassed Plaintiff with racially disparaging language, and Plaintiff had seen him beat, grab, and drag other inmates (Doc. 1, pp. 5, 18-19). On October 26, 2012, Plaintiff had a medical appointment, and Defendant Maue, along with another officer, came to escort him from his cell (Doc. 1, p. 18). When Defendant Maue told Plaintiff to rush and hurry up, Plaintiff responded with an expletive, because he believed Defendant Maue would grab him and possibly dislodge the angio-seal (Doc. 1, p. 18-20). Defendant Maue then wrote a "false" disciplinary report, stating that Plaintiff refused to obey an order to tuck in his shirt, and cursed the officers (Doc. 1, pp. 18, 31-33). During this incident, Plaintiff does not allege that Defendant Maue touched him or used any physical force against him. Ultimately, an unnamed supervisor provided a wheelchair to take Plaintiff to segregation (Doc. 1, p. 20). Plaintiff was later found guilty of insolence and disobeying a direct order, and his punishment included one month of disciplinary segregation (Doc. 1, p. 33).

Plaintiff had a second operation on October 28, 2012, in which a catheter was inserted into his penis. Defendant Veath (a correctional officer) ordered Plaintiff to walk up stairs on October 30, and refused to contact the medical department to confirm that Plaintiff had a medical permit (Doc. 1, pp. 5, 21). Following this, Plaintiff suffered swelling and bleeding from the catheter site. Id.

On July 16, 2012, prior to the operations, Plaintiff had been given a different medical permit because of his poor circulation and pain with walking. The permit included shower on gallery, front handcuffs, slow walk, low gallery/no stairs, low bunk, and circulation hose for his legs (Doc. 1, p. 16). Despite the permit, however, Plaintiff was moved several times to cells far from the shower area, causing him to suffer pain from excessive walking (Doc. 1, pp. 6, 17).

Plaintiff also claims that he was denied access to the courts, apparently during the time he spent in segregation after Defendant Maue's disciplinary report. His typewriter was confiscated, and he was denied law library privileges, legal supplies, and access to his legal storage (Doc. 1, p. 7). Some legal mail was improperly opened. Id. In addition, his grievances were mishandled and he was prevented from using the grievance procedure (Doc. 1, p. 6).

Motion for Leave to Proceed In Forma Pauperis ("IFP") (Doc. 2)

As a preliminary matter, this Court must determine whether Plaintiff 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." 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. Plaintiff is still within the 90-day surgical recovery period in which excessive physical exertion or trauma could result in serious or life-threatening injury, and prison officials' failure to heed the post-surgery medical restrictions could recur.

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 $5.78 . 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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