United States District Court, S.D. Illinois
MEMORANDUM AND ORDER
MICHAEL J. REAGAN, Chief District Judge.
For the past four years, Plaintiff Howard Jackson, a convicted sex offender, has regularly asked medical providers and prison staff at four different institutions in the Illinois Department of Corrections ("IDOC") to take an x-ray of his "privacy balls" (Doc. 1, pp. 2, 6, 9). Medical providers have declined to order an x-ray and, at times, construed the request as a sexual advance. In return, Plaintiff has initiated five separate civil rights actions against various medical providers, prison officials, and prisons in less than two years. See Jackson v. Wexford Health Care Sources, Inc., et al., No. 13-cv-01134-MJR (S.D. Ill. dismissed Dec. 2, 2013) (Doc. 10); Jackson v. Kraznician, et al., No. 14-cv-00007-MJR (S.D. Ill. dismissed Jan. 23, 2014) (Doc. 6); Jackson v. Lawrence Corr. Ctr. Healthcare., et al., No. 15-cv-00082-JPG (S.D. Ill. dismissed Apr. 2, 2015) (Doc. 15); Jackson v. Duncan, et al., No. 15-cv-00343-NJR (S.D. Ill. dismissed Apr. 21, 2015) (Doc. 6). Of these, four lawsuits were dismissed with prejudice and resulted in a "strike" against Plaintiff because they were frivolous, malicious, or failed to state a claim upon which relief may be granted. Id .; see also 28 U.S.C. § 1915(g).
Soon after receiving his fourth "strike, " Plaintiff filed the instant action pursuant to 42 U.S.C. § 1983 on May 26, 2015. In the complaint, he names Debbie Isaacs as the only defendant (Doc. 1). Plaintiff asserts what is, in essence, the same claim against Defendant Isaacs that resulted in her dismissal with prejudice from two prior lawsuits. See Jackson v. Kraznician, et al., No. 14-cv-00007-MJR (Doc. 6); Jackson v. Duncan, et al., No. 15-cv-00343-NJR (Doc. 6). The complaint sets forth a claim against Defendant Isaacs that is not only duplicative of past claims, but it is also frivolous, malicious, and meritless.
Plaintiff also filed a motion seeking leave to proceed in forma pauperis ("IFP motion") without prepayment of the Court's usual $400.00 filing fee. 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 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).
Plaintiff's IFP motion and affidavit fail to meet these requirements. They are virtually blank. Plaintiff completed the case caption, listed his current place of confinement, and signed the motion and affidavit (Doc. 2). Beyond this, he failed to answer any questions on the form. Although Plaintiff filed portions of his trust fund account statement with the IFP motion and the complaint, the Court cannot overlook the fact that the motion and affidavit, themselves, contain no substantive information regarding his income, assets, and debts.
Plaintiff's IFP motion is subject to denial for other reasons as well. According to 28 U.S.C. § 1915, a prisoner may not bring a civil action or appeal a civil judgment "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). Section 1915(g) requires that this Court consider prisoner actions dismissed prior to, as well as after, the PLRA's enactment. See Evans v. I.D.O.C., 150 F.3d 810, 811 (7th Cir. 1998); Abdul-Wadood v. Nathan, 91 F.3d 1023 (7th Cir. 1996).
As stated above, Plaintiff has had more than three prior prisoner actions dismissed on the grounds that they were frivolous, malicious, or failed to state a claim upon which relief may be granted. Because Plaintiff has accumulated at least three "strikes" for purposes of Section 1915(g), he may not proceed IFP in this or any other pending case in federal court unless he is in imminent danger of serious physical injury. Plaintiff has not satisfied this requirement.
The United States Court of Appeals for the Seventh Circuit has explained that "imminent danger" requires a "real and proximate" threat or prison condition. See Ciarpaglini v. Saini, 352 F.3d 328, 330 (7th Cir. 2003). Allegations of past harm are not sufficient to state imminent danger; "the harm must be imminent or occurring at the time the complaint is filed." Id. A plaintiff has not sufficiently alleged imminent danger where he states a past injury that has not recurred. Id. "By using the term imminent, ' Congress indicated that it wanted to include a safety valve for the three strikes' rule to prevent impending harms, not those harms that had already occurred." Abdul-Akbar v. McKelvie, 239 F.3d 307, 315 (3d Cir. 2001). Additionally, courts "deny leave to proceed IFP when a prisoner's claims of imminent danger are conclusory or ridiculous." Ciarpaglini, 352 F.3d 328, 331 (7th Cir. 2003) (citing Heimermann v. Litscher, 337 F.3d 781, 782 (7th Cir. 2003)).
Plaintiff does not claim to be in imminent danger. Instead, he requests an "emergency" x-ray of his testicles (Doc. 1, p. 11). Plaintiff's only reason for this request is that he noticed a knot in one of his testicles (Doc. 1, p. 9). He has been complaining about this knot for four years (Doc. 1, p. 6). He does not allege that a medical professional recommended an emergency x-ray. He also does not allege that he is currently suffering from any symptoms that place him in imminent danger, such as pain or changes in the size of the knot. Plaintiff's use of the word "emergency" instead seems to refer to the speed with which Plaintiff would like prison officials to act, rather than the need for this diagnostic procedure (Doc. 1, p. 11).
Along with the complaint, Plaintiff filed a grievance dated June 12, 2013 (Doc. 1, pp. 4-5). In it, he complains of pain in his testicles and a possible hernia. His statement of claim alludes to neither pain nor a hernia (Doc. 1, p. 9). Without more, the two-year-old grievance provides no basis for finding that Plaintiff now faces imminent danger of serious physical injury. Because Plaintiff has not shown that he is under imminent danger of serious physical injury so as to escape the "three-strikes" rule of Section 1915(g), he is ineligible to proceed IFP in this action.
Merits Review Pursuant to 28 U.S.C. § 1915A
When leave to proceed IFP is denied, a prisoner-plaintiff is ordinarily allowed to carry on with an otherwise meritorious action if he pre-pays the full filing fee. But the instant complaint does not, and cannot, survive preliminary review under 28 U.S.C. § 1915A. For this reason, the action shall be dismissed with prejudice, and Plaintiff shall receive an additional "strike."
Section 1915A requires the Court to dismiss any claims that are frivolous, malicious, fail to state a claim upon which relief may be granted, or seek monetary relief from an immune defendant. 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). 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.
The complaint does not satisfy these standards. Plaintiff names only one defendant in this action, i.e., Debbie Isaacs. This is the third lawsuit he has filed against this defendant for denying his request for an x-ray. See also Jackson v. Kraznician, et al., No. 14-cv-00007-MJR (S.D. Ill. dismissed Jan. 23, 2014) (Doc. 6); Jackson v. Duncan, et al., No. 15-cv-00343-NJR (S.D. Ill. dismissed Apr. 21, 2015) (Doc. 6). As mentioned above, the claims against Defendant Isaacs were dismissed with prejudice in both of the prior lawsuits. Plaintiff has not stated any sort of different or viable claim against her in this action. The statement of claim consists of a single sentence: "I field that that violated my constitutional right by give me some Ibuprofen 500 mg TAB an I bening to 4 prisons asking for a x-ray's for my ...