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Osborne v. Dennision

United States District Court, S.D. Illinois

March 22, 2018

JAMES OSBORNE, # B-20626, Plaintiff,
v.
JEFF DENNISION, DR. DAVID, and C/O SMITH, Defendants.

          MEMORANDUM AND ORDER

          Judge Herndon United States District Judge

         Plaintiff, currently incarcerated at Shawnee Correctional Center (“Shawnee”), has brought this pro se civil rights action pursuant to 42 U.S.C. § 1983. The Complaint appears to be raising a claim of deliberate indifference to a serious medical condition. This case is now before the Court for a preliminary review of the Complaint pursuant to 28 U.S.C. § 1915A.

         Under § 1915A, the Court is required to screen prisoner complaints to filter out non-meritorious claims. See 28 U.S.C. § 1915A(a). The Court must dismiss any portion of the complaint that is legally frivolous, malicious, fails to state a claim upon which relief may be granted, or asks for money damages from a defendant who by law is immune from such relief. 28 U.S.C. § 1915A(b).

         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). Frivolousness is an objective standard that refers to a claim that “no reasonable person could suppose to have any merit.” Lee v. Clinton, 209 F.3d 1025, 1026-27 (7th Cir. 2000). 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. Twombly, 550 U.S. 544, 570 (2007). The claim of entitlement to relief must cross “the line between possibility and plausibility.” Id. at 557. Conversely, a complaint is plausible on its face “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Although the Court is obligated to accept factual allegations as true, see Smith v. Peters, 631 F.3d 418, 419 (7th Cir. 2011), some factual allegations may be so sketchy or implausible that they fail to provide sufficient notice of a plaintiff's claim. Brooks v. Ross, 578 F.3d 574, 581 (7th Cir. 2009). Additionally, Courts “should not accept as adequate abstract recitations of the elements of a cause of action or conclusory legal statements.” Id. At the same time, however, the factual allegations of a pro se complaint are to be liberally construed. See Arnett v. Webster, 658 F.3d 742, 751 (7th Cir. 2011); Rodriguez v. Plymouth Ambulance Serv., 577 F.3d 816, 821 (7th Cir. 2009).

         After fully considering the allegations in plaintiff's Complaint, the Court concludes that it fails to state a claim and must be dismissed. However, plaintiff shall be given an opportunity to submit an amended complaint to present any facts which may support a civil rights claim against the defendants herein.

         The Complaint

         Plaintiff's statement of claim, in its entirety, is as follows:

Gerral [D]orris and Sue Funkhouser took me off my nerve pain meds and they aren't Dr's. Leon Kehrer and Ashley Crider, refused me of BP meds.

(Doc. 1, p. 4).

         Plaintiff names 3 defendants in this action: Jeff Dennision (Warden of Shawnee), C/O Smith (Shawnee correctional officer, 3rd Shift), and Dr. David (Shawnee physician). (Doc. 1, p. 2). He seeks monetary damages for his alleged suffering. (Doc. 1, p. 6).

         Litigation History

         In the section of the Complaint form that instructs plaintiff to list all lawsuits he has previously filed, plaintiff states that in 2016, he filed a case in this Court against Dorris, Funkhouser, Kehrer, and Crider, which is still pending, and has been set for trial.[1] (Doc. 1, p. 3). He lists no other cases. However, plaintiff filed another case in this Court earlier in 2016, which was dismissed for failure to state a claim upon which relief may be granted. That dismissal resulted in the assessment of a “strike” against plaintiff. Osborne v. Jones, et al., No. 16-cv-766-JPG (S.D. Ill., dismissed Oct. 25, 2016); see 28 U.S.C. § 1915(g). Plaintiff provides no explanation for his failure to include this lawsuit in his Complaint.

         The Complaint form clearly warns that a plaintiff who fails to comply with the directive to list all his prior lawsuits may have his case dismissed by the Court. (Doc. 1, p. 3). Further, the Court relies on a party's litigation history listed in his or her complaint to adhere to the three-strike requirement of 28 U.S.C. § 1915(g), and thus there is a need for reliable information about prior litigation. As a result, where a party fails to provide accurate litigation history, the Court may appropriately dismiss the action for providing fraudulent information to the Court. Hoskins v. Dart, 633 F.3d 541, 543 (7th Cir. 2011) (dismissal appropriate where Court-issued complaint form clearly warned Plaintiff that failure to provide litigation history would result in dismissal).

         Based on plaintiff's failure to list his case that resulted in a “strike, ” this action is subject to dismissal. However, the Court does not find that dismissal of this case is warranted at this time. Plaintiff has incurred only 1 “strike” to date within the meaning of 28 U.S.C. § 1915(g). Nonetheless, plaintiff is WARNED, in accordance with the Disposition section of this Order, that if he files any future lawsuit or amended complaint and fails to include his ...


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