United States District Court, S.D. Illinois
RODERICK T. ALLEN, No. N94327, Plaintiff,
DR. ASSELMEIR, Defendant.
MEMORANDUM AND ORDER
NANCY J. ROSENSTENGEL, District Judge.
Plaintiff Roderick T. Allen is an inmate currently housed in Menard Correctional Center. Pursuant to 42 U.S.C. § 1983, Plaintiff brings this action for deprivations of his constitutional rights with respect to the denial of effective medical care for a dental infection that he contends has spread to his jaw bone.
This case is now before the Court for a preliminary review of the complaint pursuant to 28 U.S.C. § 1915A, and for consideration of the incorporated request for "Emergency Injunctive Relief, " which is generously construed as a motion for a temporary restraining order ("TRO"). Because Plaintiff seeks a TRO, the Court will immediately take up the case. See Wheeler v. Wexford Health Sources, Inc., 689 F.3d 680 (7th Cir. 2012).
Plaintiff has not paid the $400 filing fee, and he has not sought leave to proceed in forma pauperis ("IFP") in this case ( see 28 U.S.C. § 1914(a)). As a matter of course, the Clerk of Court has sent notice that Plaintiff has 30 days to either pay or move for IFP status ( see Doc. 2). Because Plaintiff has previously been notified that he must simultaneously file his complaint and either submit the filing fee or move for pauper status ( see Allen v. Chapman, Case No. 14-cv-348-JPG (S.D. Ill., dismissed June 24, 2014)), the Court views Allen as knowingly trying to skirt the payment procedures.
Even if Plaintiff had filed a motion for pauper status, he would have to overcome the fact that he has previously filed five cases that counted as "strikes" under 28 U.S.C. § 1915(g). And even if Plaintiff had submitted the $400 filing fee for this case, he still owes thousands of dollars for other cases and could not proceed without paying that debt in full. Thus, the Court will analyze the situation as though Allen had moved for pauper status.
The Applicable Legal Standards
When conducting its preliminary review of the complaint pursuant to 28 U.S.C. § 1915A, the Court is required to dismiss any portion of the complaint that is legally frivolous, malicious, fails to state a claim upon which relief may be granted, or asks for money damages from a defendant who by law is immune from such relief. 28 U.S.C. § 1915A(b). An action or claim is frivolous if "it lacks an arguable basis either in law or in fact." Neitzke v. Williams, 490 U.S. 319, 325 (1989). Frivolousness is an objective standard that refers to a claim that "no reasonable person could suppose to have any merit." Lee v. Clinton, 209 F.3d 1025, 1026-27 (7th Cir. 2000). An action fails to state a claim upon which relief can be granted 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). The claim of entitlement to relief must cross "the line between possibility and plausibility." Id. at 557. Typically at this juncture, the factual allegations of the pro se complaint are to be liberally construed. See Rodriguez v. Plymouth Ambulance Serv., 577 F.3d 816, 821 (7th Cir. 2009).
The statute that permits a litigant to proceed in forma pauperis, 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) (emphasis added).
Court documents are, of course, public records of which the Court can take judicial notice. See Henson v. CSC Credit Servs., 29 F.3d 280, 284 (7th Cir. 1994). Review of documents filed in the electronic docket of this Court, and on the Public Access to Court Electronic Records ("PACER") website (www.pacer.gov), discloses that Allen has already had five other cases dismissed as frivolous or for failure to state a claim upon which relief may be granted. See 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); Allen v. Bower, Case No. 13-cv-931-MJR (S.D. Ill., dismissed Mar. 17, 2013); and most recently Allen v. Chapman, Case No. 14-cv-348-JPG (S.D. Ill., dismissed June 24, 2014).
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)).
A TRO is an order issued without notice to the party to be enjoined that may last no more than 14 days. FED.R.CIV.P. 65(b)(2). A ...