United States District Court, S.D. Illinois
MEMORANDUM AND ORDER
Phil Gilbert United States District Judge
Jeremy Pinson is a male-to-female transgender
inmate 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.
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.
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).
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.
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 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.
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.
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).
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
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)).
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.
Review Pursuant to 28 U.S.C. § 1915A
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.”
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