United States District Court, S.D. Illinois
MEMORANDUM AND ORDER
M. YANDLE United States District Judge.
Eddie Sykes, who is currently incarcerated at Menard
Correctional Center (“Menard”), brings this
action pursuant to 42 U.S.C. § 1983 against eleven
defendants who allegedly denied him adequate medical care at
Menard for an enlarged prostate, bloody stool, difficulty
urinating and high blood pressure, among other conditions.
(Doc. 9). He sues these defendants for exhibiting deliberate
indifference to his medical needs in violation of the Eighth
Amendment. (Doc. 9, pp. 1-78). Plaintiff seeks monetary
damages against them. (Doc. 9, pp. 79-80). He also seeks a
preliminary injunction in the form of an order compelling the
defendants to provide him with all medical testing and
treatment that is necessary to resolve his numerous medical
issues (Doc. 10).
case was opened on November 10, 2016 after the Court received
notification that Plaintiff submitted a voluminous Complaint
and exhibits for filing in the prison's law library. Due
to its size, the Complaint and exhibits could not be scanned
at the prison and were instead mailed to the Court for
filing. For reasons that are not altogether clear, the
exhibits did not arrive by mail until November 22, 2016 --
twelve days later. (Docs. 4 and 5). The Complaint did not
arrive until December 15, 2016. Further, because the
Complaint listed no case number, a new case was opened.
See Sykes v. Trost, et al., No. 16-cv-1350-DRH (S.D.
Ill.) (“new case”) (Doc. 1).
Court reviewed the Complaint and concluded that it belonged
in the instant action. Therefore, the new case was closed on
December 21, 2016. (Doc. 6, new case). The Clerk was directed
to refile the Complaint in this action the same day.
matter is now before the Court for preliminary review. Before
the Court can screen the Complaint pursuant to 28 U.S.C.
§ 1915A, however, it must first address Plaintiff's
Motion for Leave to Proceed in forma pauperis
(“IFP Motion”) filed on December 15, 2016. (Doc.
8). The IFP Motion was granted pursuant to an Order dated
December 30, 2016. (Doc. 12). However, for the reasons set
forth herein, the Court deems it necessary to revoke
Plaintiff's IFP status upon reconsideration of the
seeks leave to proceed IFP without prepayment of the
Court's usual $350.00filing fee in a civil case. 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
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” under 28 U.S.C. §
setting forth his litigation history in the Complaint (Doc.
9), Plaintiff did not disclose any of his
strikes. However, court documents are public
records, and the Court can take judicial notice of them.
Hensen v. CSC Credit Servs., 29 F.3d 280, 284 (7th
Cir. 1994). Review of the electronic docket of this Court and
the Public Access to Court Electronic Records
(“PACER”) website (www.pacer.gov) discloses the
following actions that were filed by Plaintiff and resulted
in the assessment of a strike: Sykes v. Alfon, No.
08-cv-76-DRH (S.D. Ill., dismissed July 2, 2008, for failure
to state a claim); Sykes v. Ameji, No.
08-cv-2010-MPM-DGB (C.D. Ill., dismissed Aug. 28, 2008;
docket entry of Jan. 13, 2009, notes the dismissal counts as
a strike under 28 U.S.C. § 1915(g)); and Sykes v.
Feinerman, Appeal No. 11-2106 (7th Cir., leave to appeal
IFP denied July 21, 2011 (Doc. 9), and appeal counted as a
strike for purposes of 28 U.S.C. § 1915(g)).
to commencing this action, Plaintiff “struck out”
by filing 3 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. Because
Plaintiff has accumulated at least 3 strikes for purposes of
§ 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. Having reviewed Plaintiff's
voluminous submission, the Court concludes that he does not
satisfy this requirement.
Seventh Circuit has explained that “imminent
danger” requires a “real and proximate”
threat. 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 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 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. In his 80-page Complaint (Doc. 9), Plaintiff
names Wexford Health Sources, Inc. (“Wexford”)
and ten prison officials in connection with a claim that he
was denied adequate medical care during his incarceration at
Menard in 2007-08, 2010-2015, and since January 13, 2016.
(Doc. 9, pp. 15-78). Plaintiff describes, in great detail,
approximately a dozen chronic conditions that have affected
him since 2003. These conditions include an enlarged
prostate, bloody stool, difficulty urinating, a knot under
his scrotum, blood pressure problems, lower back pain, thigh
pain, hip pain, stomach pain and a “colon full of
stool.” (Docs. 9 and 10). He also describes boils that
periodically form on his neck and head, a condition that
presently presents no problem for him.
has regularly sought and received care for each of these
conditions. He describes daily, weekly, or monthly
appointments with the prison's medical staff and
referrals to outside specialists, including numerous visits
to a urologist. He has undergone testing that includes x-rays
and an EKG, but insists that he now needs a bone scan. He has
routinely taken prescription medications and over-the-counter
pain relievers to manage each of the health conditions
described above. Nothing works. At the same time, he
complains of no change in these conditions during the past
2016, Plaintiff's medical complaints took a different
turn. He allegedly developed allergy and sinus problems in
the spring that persisted through the summer and into the
fall. He saw prison medical staff to discuss his symptoms on
numerous occasions. At these appointments, he also complained
about his chronic medical issues. However, his primary focus
was on the allergy and sinus issues. Nowhere in his Complaint