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Allen v. Overall

United States District Court, S.D. Illinois

June 24, 2014

RODERICK T. ALLEN, # N-94327, Plaintiff,
v.
DR. NATHAN CHAPMAN, and DR. OVERALL, Defendants.

MEMORANDUM AND ORDER

PHIL GILBERT, District Judge.

This matter is before the Court for review of Plaintiff's motion for leave to proceed in forma pauperis ("IFP Motion") (Doc. 6). Plaintiff has accumulated more than three "strikes" by filing lawsuits that were dismissed for failure to state a claim upon which relief may be granted or for raising frivolous claims.[1] Under the circumstances, he may not proceed in forma pauperis in a new civil action unless he is under imminent danger of serious physical injury. See 28 U.S.C. § 1915(g). Plaintiff's pleadings describe no such threat. For the reasons set forth below, the pending IFP Motion shall be DENIED and the case shall be DISMISSED.

The Complaint

Plaintiff filed this lawsuit pursuant to 42 U.S.C. § 1983 on March 18, 2014 (Doc. 1). In the complaint, he claims that two dentists at Menard Correctional Center ("Menard"), Dr. Chapman and Dr. Overall, refused his request for "pharmaceutically based treatment for gum disease" (Doc. 1, pp. 1-2). Both denied that such treatment exists. Instead, they treated Plaintiff's gum disease through a "mechanical cleaning [process] which consisted of scraping teeth by hand with a dental tool" (Doc. 1, p. 3). This treatment allegedly had no effect on the progression of Plaintiff's gum disease, although he has no dental records to support the claim. Plaintiff now seeks "authenticated pharmaceutically based medication, in solid or liquid form" for the treatment of his gum disease. He also requests photographs of his gums, in order to measure their deterioration. Plaintiff alleges that he previously sued Defendant Chapman for the same conduct, and the case was dismissed (Doc. 1, p. 3).

Motion for Leave to Proceed IFP (Doc. 6)

Plaintiff initially filed this action without paying a filing fee or filing an IFP Motion. The Clerk of Court advised him of these requirements in a letter dated March 18, 2014 (Doc. 2). Plaintiff was given thirty days to pay the full filing fee or file a properly completed IFP Motion. He did neither. On April 18, 2014, this Court ordered him to pay the fee or file an IFP Motion by May 2, 2014, or face dismissal of his case (Doc. 3). Plaintiff requested an extension on May 1, 2014, and the Court granted his request the following day by extending the deadline to June 2, 2014 (Docs. 4-5). Plaintiff timely filed an IFP Motion, which is now before the Court (Doc. 6).

In the IFP Motion, Plaintiff seeks leave to proceed in this case without prepayment of the Court's usual $400.00[2] filing fee in a civil case. See 28 U.S.C. § 1914(a). Pursuant to 28 U.S.C. § 1915, 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 this case, Plaintiff's motion and affidavit are sufficient as to form, but the Court's inquiry does not end there. According to 28 U.S.C. § 1915:

[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).

As noted earlier, Plaintiff brought the following actions during his imprisonment seeking redress from officers or employees of a governmental entity, that have been dismissed pursuant to 28 U.S.C. § 1915A on the grounds that they were frivolous, malicious, or failed to state a claim upon which relief may be granted: Allen v. Chapman, Case No. 11-cv-1130-MJR (S.D. Ill., dismissed Aug. 29, 2012); Allen v. Godinez, Case No. 12-cv-936-GPM (S.D. Ill., dismissed Oct. 18, 2012); Allen v. Harrington, Case No. 13-cv-725-GPM (S.D. Ill., dismissed Aug. 22, 2013); and Allen v. Bower, et al., Case No. 13-cv-931-MJR (S.D. Ill., dismissed March 17, 2014). Because Plaintiff has accumulated more than three "strikes" for purposes of § 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)). 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 this case, Plaintiff's complaint and his IFP motion are devoid of allegations that might lead the Court to conclude that Plaintiff is under imminent danger of serious physical injury. Nowhere in his pleadings does Plaintiff mention being in any sort of danger, let alone imminent danger. He complains about his dental care, which he claims is inadequate. He instead expresses a preference for pharmaceutical treatment and appears to be upset by the fact that the prison dentists are unaware of the availability of such treatment. It is unclear when Plaintiff was denied treatment or how long it persisted. In any event, none of the allegations remotely ...


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