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Pinson v. Federal Bureau of Prisons

United States District Court, S.D. Illinois

November 14, 2016

JEREMY PINSON, #16267-064, Plaintiff,
v.
FEDERAL BUREAU OF PRISONS and FNU WERLICH, Defendants.

          MEMORANDUM AND ORDER

          J. Phil Gilbert United States District Judge

         Plaintiff Jeremy Pinson is a male-to-female transgender inmate[1] who is currently in the custody of the Federal Bureau of Prisons (BOP). When she filed this action on October 13, 2016, Plaintiff was incarcerated at the Federal Correctional Institution located in Greenville, Illinois (FCI-Greenville) (Doc. 1). She sought injunctive relief against the BOP pursuant to Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971), and the Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 1346, 2671-80.

         According to the original complaint, Plaintiff sustained a head injury in July and a serious injury to her scrotum in October, after being attacked by fellow inmates at the Federal Correctional Institution located in Terre Haute, Indiana (FCI-Terre Haute) (Doc. 1, pp. 1-5). She was treated at a hospital on or after October 2, 2016, and then transferred to FCI-Greenville. There, Plaintiff was housed in FCI-Greenville's Special Housing Unit (SHU) for her protection.

         Plaintiff claimed that she is mentally unfit for solitary confinement. She requested an order prohibiting her placement in FCI-Greenville's SHU (id. at 3). She also requested an order for a referral to a neurologist for further evaluation of her head injury and urologist for treatment of her infected scrotum (id. at 2).

         Given the seemingly urgent nature of her requests for relief, the Court immediately reviewed the case, in order to determine whether Plaintiff was entitled to relief under Federal Rule of Civil Procedure 65. See Wheeler v. Wexford Health Sources, Inc., 689 F.3d 680 (7th Cir. 2012). This was despite the fact that Plaintiff failed to prepay a filing fee or file a motion seeking leave to proceed in forma pauperis (“IFP motion”). After carefully considering the matter, the Court concluded that no relief was warranted under Rule 65, primarily because Plaintiff demonstrated no likelihood of success on the merits of her claims. Therefore, the Court entered an Order denying relief under Rule 65 on October 21, 2016 (see Doc. 7). The Court deferred its formal review of the complaint under 28 U.S.C. § 1915A until Plaintiff prepaid her $400.00 filing fee or filed a properly completed IFP motion.

         On October 21, 2016, Plaintiff filed a timely IFP motion (Doc. 9), in which she seeks leave to proceed in this action without prepayment of the Court's usual $400.00[2] filing fee. See 28 U.S.C. § 1914(a). A week later, she filed an amended complaint (Doc. 10). The IFP motion and amended complaint are now before the Court for consideration.

         IFP Motion

         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 satisfy these requirements.

         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 ground 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 that were 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). Plaintiff is subject to the “three strikes rule” set forth under 28 U.S.C. § 1915(g).

         Prior to filing this action, Plaintiff “struck out” by filing three or more prisoner actions that were dismissed on the grounds that they were frivolous, malicious, or failed to state a claim upon which relief may be granted (see Doc. 8, p. 1). Because Plaintiff has accumulated at least three “strikes” for purposes of Section 1915(g), she may not proceed IFP in this or any other pending case in federal court unless she is in imminent danger of serious physical injury.

         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 she 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, 239 F.3d at 315. Additionally, courts “deny leave to proceed IFP when a prisoner's claims of imminent danger are conclusory or ridiculous.” Ciarpaglini, 352 F.3d at 331 (citing Heimermann v. Litscher, 337 F.3d 781, 782 (7th Cir. 2003)).

         The Court looks to the allegations set forth in the original complaint when determining whether Plaintiff faced imminent danger of serious physical injury. See Ciarpaglini, 352 F.3d at 330. The allegations suggest that Plaintiff may have faced imminent danger at the time of filing the action. She described mental unfitness that placed her at high risk for suicide while she was housed in FCI-Greenville's SH U.She described an untreated infection to her scrotum. Finally, she described the lingering effects of an untreated head injury. For purposes of § 1915 only, the Court finds that Plaintiff's allegations in the original complaint satisfy the “imminent danger” requirement necessary to qualify her for IFP status in this action. Plaintiff's IFP motion is hereby GRANTED.

         Merits Review Pursuant to 28 U.S.C. § 1915A

         After filing her original complaint (Doc. 1), Plaintiff filed an amended complaint (Doc. 10) which supersedes and replaces the original and renders it void. See Flannery v. Recording Indus. Ass'n of Am.,354 F.3d 632, 638 n. 1 (7th Cir. 2004). The amended complaint is now subject to preliminary review under 28 U.S.C. § 1915A. 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. ...


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