United States District Court, S.D. Illinois
MEMORANDUM AND ORDER
GILBERT, District Judge
Mark Davenport, who is currently incarcerated at
Pinckneyville Correctional Center
(“Pinckneyville”), brings this action pursuant to
42 U.S.C. § 1983 against two defendants (Vipin Shaw, a
physician and Jane Doe, an unidentified nurse) who allegedly
denied him adequate medical care at Pinckneyville in 2015 in
connection with Plaintiff's blood pressure. (Doc. 1). He
sues these defendants for exhibiting deliberate indifference
to his medical needs in violation of the Eighth Amendment.
(Doc. 1, pp. 6-8). Plaintiff seeks monetary damages against
them. (Doc. 1, p. 9).
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 September 13, 2017. (Doc.
2). The IFP Motion was granted pursuant to an Order dated
September 29, 2017. (Doc. 9). 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.
1, p. 3), Plaintiff only disclosed a single action,
Davenport v. Gaetz et al., No. 16-cv-495-NJR-DGW
however, made no mention of the following actions, each of
which resulted in assessment of a strike under §
1915(g): (1) Davenport v. Lind et al., No.
13-cv-980-GPM (S.D. Ill., dismissed on November 13, 2012, for
failure to state a claim); (2) Davenport v. Green et
al., No. 13-cv-484-MJR (S.D. Ill., dismissed June 24,
2013, for failure to state a claim); and (3) Davenport v.
Szczepanski, No. 16-cv-494-NJR (S.D. Ill., dismissed
June 14, 2016, for failure to state a claim).
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
Complaint, the Court concludes that he does not satisfy this
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)).
to the Complaint, in 2015, Plaintiff was suffering from dizzy
spells and attributed that symptom to his prior diagnosis for
hypertension. (Doc. 1, p. 6). Plaintiff sought testing and
blood pressure medication from Shah. Id. Plaintiff
contends that Shah refused his requests, but did order blood
pressure checks. (Doc. 1, pp. 6-7). Plaintiff also contends
that during the same time period, an unidentified nurse was
deliberately indifferent to Plaintiff's hypertension
associated medical needs. Finally, Plaintiff claims that,
“as an act of retaliation” for prior complaints,
Shah put a note in Plaintiff's medical records,
indicating Plaintiff was refusing blood pressure medication.
eventually left employment at Pinckneyville. (Doc. 1, p. 7).
Plaintiff's symptoms continued to worsen until Plaintiff
was seen by a new physician; Dr. Scott. Id. Unlike
Shah, Dr. Scott examined Plaintiff and asked questions.
Id. Dr. Scott also instructed Plaintiff to document
his symptoms. Id. Eventually, Dr. Scott prescribed
Antivert, which Plaintiff is presently taking. Id.
According to the Complaint, the Antivert is successfully
treating Plaintiff's symptoms. Id.
Plaintiff's Complaint pertains to a past injury that has
not recurred. Further, by Plaintiff's own admission, he
is presently receiving effective treatment for his
hypertension and related symptoms. In light of these
considerations, the Court concludes that Plaintiff faces no
imminent danger of serious physical injury and cannot
overcome the 3-strikes hurdle set forth under § 1915(g).
Plaintiff does not qualify to proceed in this action as a
pauper, and his IFP status shall therefore be revoked.