United States District Court, C.D. Illinois
MERIT REVIEW ORDER
BILLY McDADE UNITED STATES DISTRICT JUDGE.
proceeding pro se, pursues a § 1983 action for
deliberate indifference to his serious medical needs, and
retaliation, at the Western Illinois Correctional Center. The
case is before the Court for a merit review pursuant to 28
U.S.C. § 1915A. In reviewing the Complaint, the Court
accepts the factual allegations as true, liberally construing
them in Plaintiff's favor. Turley v. Rednour,
729 F.3d 645, 649-51 (7th Cir. 2013). However, conclusory
statements and labels are insufficient. Enough facts must be
provided to “state a claim for relief that is plausible
on its face.” Alexander v. United States, 721
F.3d 418, 422 (7th Cir. 2013)(citation and internal quotation
marks omitted). While the pleading standard does not require
“detailed factual allegations”, it requires
“more than an unadorned,
Wilson v. Ryker, 451 Fed.Appx. 588, 589 (7th Cir.
2011) quoting Ashcroft v. Iqbal, 556 U.S. 662, 678
has filed 20 lawsuits and has accumulated four strikes.
Talley v Gongockey, No. 13-1112 (C.D. Ill. Nov. 18,
2013); Talley v Reardon, No. 14-2251 (C.D. Ill. Feb.
2, 2015); Talley v Williams, Case No. 14-3291 (C.D.
Ill. July 14, 2015) and Talley v Clerk of Court, No.
15-5323 (N.D. Ill. June 19, 2015). Plaintiff has filed this
latest complaint and a petition to proceed in forma pauperis,
without prepayment of the filing fee [ECF 6]. Pursuant to 28
U.S.C.§1915(g), a plaintiff may not proceed in forma
pauperis if he has accumulated three or more strikes unless
“under imminent danger of serious physical
alleges that he was transferred back to Western in November
2015 and had a prior history of a “bleb” in his
right eye from a 2009 glaucoma surgery. Prior to the
transfer, Plaintiff had been scheduled appointment to be seen
by an eye specialist and appears to have missed that
appointment. In January 2016, Plaintiff was seen by the
Western eye doctor, whom he has named as a Doe Defendant. At
that time, Plaintiff allegedly complained of eye pain,
enlargement of the bleb, swelling and discoloration.
Plaintiff claims that he was referred to see an outside eye
specialist in February 2016. When the officers came to take
Plaintiff to his eye appointment he refused to go as the
officer reportedly would not tell him where they were taking
him. Plaintiff was seen by an eye specialist the following
month, March 2016. Plaintiff does not reveal whether the
outside specialist offered any treatment or made any
claims that at some unidentified point, the right eye got
worse and he also began to lose vision in his left eye. He
alleges that his eye was discolored and that this is evidence
of an infection. He claims that the Doe Defendant failed to
provide him antibiotics or pain medication. He also claims
that Defendant prescribed him bifocals when he did not need
them, did this to destroy the vision in Plaintiff's good
eye and did this in retaliation for Plaintiff's filing
states a colorable claim, at this juncture, for deliberate
indifference for the Doe Defendant's failure to prescribe
antibiotics and pain medication for the alleged eye
infection. Plaintiff's claim that Defendant retaliatorily
prescribed bifocal glasses will not go forward. Plaintiff
fails to explain how wearing bifocal lenses can destroy
one's vision or that he was required to wear the
offending bifocals. Additionally, a plaintiff may not
“piggyback” claims not involving imminent danger
of physical injury with claims that do. See Godwin v.
Tidquist, 2010 WL 4941616 (W.D.Wis. November 30, 2010).
also alleges that there was an undue delay in his referral to
the eye specialist. This claim is dismissed as Plaintiff
refused to go to the first scheduled appointment and a second
appointment was scheduled the following month. This is not
evidence of deliberate indifference as it does not support
that Defendant disregarded an excessive risk to
Plaintiff's health. Greeno v. Daley, 414 F.3d
645, 653 (7th Cir. 2005). Furthermore, a plaintiff may not
refuse treatment and then claim deliberate indifference for
the lack of treatment. See Offutt v.
Cahill-Masching, No. 04-1231 at *5 (C.D.Ill.Dec. 12,
the deliberate indifference claim against the Doe Defendant
survives, Plaintiff may proceed in forma pauperis
only if a sufficiently alleges imminent danger of serious
physical harm. The requirement that the danger be
“imminent” is meant as “an escape hatch for
genuine emergencies…” Lewis v.
Sullivan, 279 F.3d 526, 531 (7th Cir. 2002). It is to be
asserted if “time is pressing” and “a
threat ... is real and proximate.” Heimermann v
Litxcher, 337 F.3d 781 (7th Cir. 2003). To be imminent,
the harm must be occurring “at the time the complaint
is filed.” Ciarpagini v. Saini, 352 F.3d 328,
330 (7th Cir. 2003). In addition to being imminent, the
danger must also involve “serious physical
injury.” 28 U.S.C. § 1915(g). Courts are to deny a
3-strikes plaintiff leave to proceed in forma
pauperis “when prisoner's claims of imminent
danger are conclusory or ridiculous.”
Ciarpagini at 330.
Plaintiff fails to allege imminent danger where he has been
referred to an outside specialist for treatment of his eye
complaints and where he does not claim that the
specialist's recommendations have not been followed. As
he is receiving treatment, Plaintiff fails to successfully
allege that he is in imminent danger of serious physical
claim that Warden Korte, Medical Director Butler and
Shoemaker knew that Defendant was allegedly unfit but allowed
him to treat inmates anyway, is too conclusory to allege
personal participation by Defendants Korte, Butler and
Shoemaker. Section 1983 creates a cause of action based on
personal liability and predicated upon fault; thus, “to
be liable under [Section] 1983, an individual defendant must
have caused or participated in a constitutional
deprivation.” Pepper v. Village of Oak Park,
430 F.3d 809, 810 (7th Cir. 2005) (citations omitted).
Defendants Korte, Butler and Shoemaker are DISMISSED.
Plaintiff names Cindy Hobrock in the caption but does not
mention her in the body of the complaint. Merely naming a
defendant in the caption is insufficient to state a claim.
See Collins v. Kibort, 143 F.3d 331, 334 (7th
Cir.1998). Ms. Hobrock is also DISMISSED.
motion to proceed in forma pauperis  is DENIED as
Plaintiff has failed to allege imminent threat of serious
physical injury. Plaintiff will be given 14 days in which to
pay the $400 filing fee should he wish to proceed with this
Plaintiff states a claim of deliberate indifference against
the Doe Defendant physician. His retaliation claim against
the Doe Defendant is DISMISSED, as Plaintiff is a 3-striker
and there is no evidence of imminent danger due to Plaintiff
being prescribed bifocal glasses.
Plaintiff's claims against Defendants Korte, Butler and
Shoemaker fail to allege their personal participation in the
alleged violations and these Defendants are DISMISSED.
Defendant Hobrock is DISMISSED as Plaintiff ...