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McDonald v. Shearing

United States District Court, Seventh Circuit

September 23, 2013

MAURICE J. McDONALD, #B42547, Plaintiff,
v.
DR. SHEARING, Defendant.

MEMORANDUM AND ORDER

J. PHIL GILBERT, District Judge.

Plaintiff Maurice J. McDonald is currently in the custody of the Illinois Department of Corrections, housed at Menard Correctional Center. On August 26, 2013, McDonald, proceeding pro se, filed this "emergency" civil rights action pursuant to 42 U.S.C. § 1983 (Doc. 1). Plaintiff has peripheral artery disease ("PAD"), which causes leg pain and difficulty walking. According to the complaint, defendant Dr. Shearing has been deliberately indifferent to Plaintiff's serious medical needs and is endangering Plaintiff's life, all in violation of the Eighth Amendment.

By Order dated September 3, 2013, Plaintiff was denied a temporary restraining order, but the preliminary review of the complaint required under 28 U.S.C. § 1915A, and Plaintiff's motion for leave to proceed in forma pauperis (Doc. 2) were left for another day. Those matters will now be addressed.

Pauper Status

A federal court may permit a prisoner who is indigent to bring a "suit, action or proceeding, civil or criminal, " without prepayment of fees upon presentation of an affidavit stating the prisoner's assets together with "the nature of the action... and affiant's belief that the person is entitled to redress." 28 U.S.C. § 1915(a)(1). In the case of civil actions, a prisoner's affidavit of indigence must be accompanied by "a certified copy of the trust fund account statement (or institutional equivalent) for the prisoner for the 6-month period immediately preceding the filing of the complaint..., obtained from the appropriate official of each prison at which the prisoner is or was confined." 28 U.S.C. § 1915(a)(2).

In this case, Plaintiff has tendered an affidavit of indigence that is sufficient as to form and which indicates he is indigent, but this is not the end of the matter because 28 U.S.C. § 1915 further provides:

[i]n 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).

Plaintiff has failed to disclose his lengthy litigation history and accumulation of "strikes" under Section 1915(g).[1] A plaintiff's failure to disclose his litigation history, particularly when he seeks to proceed IFP, may be grounds for immediate dismissal of the suit. Ammons v. Gerlinger, 547 F.3d 724, 725 (7th Cir. 2008) (termination of the suit is an appropriate sanction for struck-out prisoner who took advantage of court's oversight and was granted leave to proceed IFP); Sloan v. Lesza, 181 F.3d 857, 858-59 (7th Cir. 1999) (litigant who sought and obtained leave to proceed IFP without disclosing his three-strike status committed a fraud upon the court); see also Hoskins v. Dart, 633 F.3d 541, 543 (7th Cir. 2011) (dismissal with prejudice appropriate where Court-issued complaint form clearly warned Plaintiff that failure to provide litigation history would result in dismissal). However, because Plaintiff's motion for pauper status does reference Section 1915(g), and explains that he owes the Court $5, 000 for "bogus dismissals, " no sanction will be imposed.

Because Plaintiff has three strikes for purposes of Section 1915(g), he may not proceed IFP in this case unless he is under imminent danger of serious physical injury. 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)). There must be an adequate nexus, "fairly traceable" between imminent harm and the legal claims. Pettus v. Morgenthau, 554 F.3d 293, 298-99 (2d Cir. 2009). 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 AbdulWadood v. Nathan, 91 F.3d 1023 (7th Cir. 1996)).

Plaintiff's PAD causes leg pain and difficulty walking. Dr. Shearing recently altered various permits that had been issued to Plaintiff to accommodate his PAD. Although the complaint is not entirely clear, it appears that Dr. Shearing revoked or declined to renew Plaintiff's "shower on gallery" permit; he also revoked the permit that allowed Plaintiff to be fed meals in his cell, replacing it with a "slow walk" permit-leaving Plaintiff to walk the 200 yard distance to the dining hall; and a "front cuff" permit was replaced with a "double cuff/behind the back" permit. Plaintiff also asserts that walking "has been known" to cause those with PAD to suffer a heart attack or stroke ( see Doc. 1, p. 5). Furthermore, since he cannot walk the long distance for meals, he is being deprived of food, which then prohibits him from taking needed medications and could lead to malnutrition, which can cause a heart attack. Plaintiff describes Dr. Shearing as practicing medicine in the dark ages; Shearing's treatment plan is characterized as torture and attempted murder; and this case is deemed by Plaintiff to be a matter of national security.

In denying Plaintiff a temporary restraining order, the Court concluded that, based on the allegations in the complaint, Plaintiff failed to show immediate and irreparable injury if the Court did not take immediate action (Doc. 6). The Court again finds the complaint filled with obvious hyperbole, conclusory statements and bald assertions of grave medical consequences. However, in denying a temporary restraining order, whether immediate intervention is necessary is a deciding factor. In contrast, the analysis under Section 1915(g) pertains only to "imminent danger of serious physical injury." The Court is mindful that PAD can be a painful condition, and that the same plaques that affect the legs can cause heart attacks and strokes. See www.mayoclinic.com/health/peripheral-arterial-disease/DS00537. Also, pain can constitute irreparable injury. Wheeler v. Wexford Health Sources, Inc., 689 F.3d 680, 682 (7th Cir. 2012). Therefore, Plaintiff will be permitted to proceed as a pauper. However, if at any time the Court concludes that Plaintiff's claims are frivolous, malicious or fail to state a claim upon which relief may be granted, this action will be dismissed with prejudice, a strike will be assessed, sanctions will likely ensue, and a long overdue ban order pursuant to Support Systems International, Inc. v. Mack, 45 F.3d 185 (7th Cir. 1995), will likely follow.

Preliminary Review of the Complaint

This case is now before the Court for a preliminary review of the complaint pursuant to 28 ...


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