United States District Court, S.D. Illinois
MEMORANDUM AND ORDER
Herndon United States District Judge
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.
§ 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).
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).
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
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).
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.
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. (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 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).
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 ...