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Green v. Cox

United States District Court, S.D. Illinois

December 15, 2014

ANDRE GREEN, Plaintiff,


STACI M. YANDLE, District Judge.

On November 24, 2014, Plaintiff Green filed his pro se civil rights complaint in this Court (Doc. 1). In addition to his claim that the Defendants violated his civil rights, see Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971), Plaintiff seeks damages pursuant to the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 1346(b); § 2671 et seq. The events giving rise to his claims occurred in April 2013, while Plaintiff was incarcerated at the United States Penitentiary in Marion, Illinois.

Now before the Court is Plaintiff's motion to proceed in forma pauperis ("IFP"), i.e., without prepaying the filing fee (Doc. 2). At the time of filing the complaint, Plaintiff had been released from Federal Bureau of Prisons custody, and was housed in a personal residence in New York City. As such, Plaintiff does not meet the statutory definition of prisoner[1] for purposes of the in forma pauperis statute, which states that "[t]he term prisoner' means any person incarcerated or detained in any facility who is accused of, convicted of, sentenced for, or adjudicated delinquent for, violations of criminal law or the terms and conditions of parole, probation, pretrial release, or diversionary program." 28 U.S.C. § 1915(h).

Under 28 U.S.C. § 1915(a)(1), a federal district court may allow a civil case to proceed without prepayment of fees, if the movant "submits an affidavit that includes a statement of all assets [he] possesses [showing] that the person is unable to pay such fees or give security therefor." Plaintiff has done so in the instant case (Doc. 2). But the Court's inquiry does not end there, because 28 U.S.C. § 1915(e)(2) requires careful threshold scrutiny of the complaint filed by an IFP plaintiff.

A court can deny a qualified plaintiff leave to file IFP or can dismiss a case if the action is clearly frivolous or malicious, fails to state a claim or is a claim for money damages against an immune Defendant. 28 U.S.C. § 1915(e)(2)(B). The test for determining if an action is frivolous or without merit is whether the plaintiff can make a rational argument on the law or facts in support of the claim. Neitzke v. Williams, 490 U.S. 319, 325 (1989); Corgain v. Miller, 708 F.2d 1241, 1247 (7th Cir. 1983). An action fails to state a claim if it does not plead "enough facts to state a claim to relief that is plausible on its face." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). When assessing a petition to proceed IFP, a district court should inquire into the merits of the petitioner's claims, and if the court finds them to be frivolous, it should deny leave to proceed IFP. Lucien v. Roegner, 682 F.2d 625, 626 (7th Cir. 1982).

The Complaint

In drafting his pleading, Plaintiff used this Court's pre-printed form for a non-prisoner civil rights complaint. His completion of the "parties" section indicates that he is asserting civil rights claims against each of the Defendants, because Plaintiff states that each of them, including Marion Warden J.S. Walton, "personally participated" in violating his civil rights (Doc. 1, pp. 1-3). Plaintiff also clearly states that he is bringing an FTCA claim over the injury he sustained as a result of the Defendants' actions (Doc. 1, pp. 1, 5).

The statement of claim discloses that on April 25, 2013, while Plaintiff was walking to the inmate recreation center, Defendant Lester (a fellow inmate) ran over his foot with an electric scaffold lift machine (Doc. 1, p. 5). Defendant Cox (a prison maintenance officer) was supervising Defendant Lester at the time. Plaintiff's foot was severely injured by the 3, 000-pound machine. Defendants Lester and Cox never inquired as to whether Plaintiff needed any assistance.

Plaintiff sought help from another officer, and was taken to Health Services. An unnamed nurse treated him, but gave him no pain medication despite his complaints that he was in severe pain. Plaintiff was given medication for the pain three days later after he sought assistance from a case manager and counselor. He claims that to this day, he continues to experience sharp pain in the injured foot, especially when he is walking.

Plaintiff states that he has exhausted his administrative remedies, and received a letter dated September 4, 2014, denying his Federal Tort Claim. Although he refers to this document as "Exhibit 1, " the letter was not attached to the complaint.

He seeks compensatory and punitive damages.

Previous Litigation filed by Plaintiff

In 2013, Plaintiff brought two separate cases in which he raised claims relating to the same incident with the electric scaffold lift. Each has been dismissed without prejudice, however, a review of the Court's orders in those cases is instructive as to the disposition of the civil rights portion of the instant action.

On July 19, 2013, Plaintiff sued Leslee Duncan (a Marion medical provider), Ruben Morales (a physician at FCI-Fairton, New Jersey), and the then-unknown Maintenance Officer and Unknown Inmate who were responsible for Plaintiff's foot injury described above. Green v. Duncan, et al., Case No. 13-cv-713-JPG-PMF (S.D. Ill.). Plaintiff raised civil rights claims against each of the Defendants for deliberate indifference to his medical needs. His claims against the two medical providers were allowed to proceed, although the claim against Defendant Morales (Count 2 in that case) was severed and transferred to the District of New Jersey. Plaintiff's case against Defendant Duncan included a claim (designated as Count 1 in that case) that she refused to give him sufficient pain medication immediately after his foot was injured by the scaffold lift on April 25, 2013. She initially gave him only four pain pills, which did not relieve his suffering, and then refused his request for more pain relief. She later approved Plaintiff's request for more pain medication, but he did not get the ...

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