Summary
finding that the plaintiff failed to demonstrate imminent danger of serious physical injury when he alleged he was given inadequate medical care for Hepatitis-C
Summary of this case from Uzomba v. Bexar Cnty.Opinion
NO. 01-1970
July 24, 2001
ORDER AND REASONS
On July 10, 2001, the plaintiff, Henderson Ford, filed a Motion to Proceed In Forma Pauperis (doc. #3), which the Court construes to be a Motion to Reconsider the Court's prior Order denying him leave to proceed in forma pauperis pursuant to the prohibition in Title 28 U.S.C. § 1915 (g), discussed infra. In support of the Motion, Ford claims that he should be allowed to proceed as a pauper because he was in imminent danger at the time his complaint was mailed from the prison. (Motion, p. 3).
Ford filed the above captioned pro se lawsuit pursuant to Title 42 U.S.C. § 1983 against Orleans Parish Sheriff Charles C. Foti Jr., the Orleans Parish Prison medical service, the Orleans Parish Prison medical director, and the Prison's indemnity insurance company, alleging the denial of adequate medical care. Ford claims that because of his arrest, he missed his previously scheduled appointment to have a circumcision. He also claims that he may now have Hepatitis C and that the prison doctors are not treating him progressively. (Rec. doc. #1, p. 9-10). Ford seeks monetary damages, a declaratory judgment, and injunctive relief in the form of an order directing the defendants to provide adequate medical treatment.
By Order and Reasons entered July 5, 2001, (Rec. doc. #1), the Court denied Ford's first Motion to Proceed in Forma Pauperis pursuant to provisions of the Prison Litigation Reform Act of 1996 ("PLRA"), as codified in Title 28 U.S.C. § 1915 (g), which provides that a prisoner shall not be allowed to bring a civil action pursuant to § 1915 if he has, on three 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 grounds that it was frivolous, malicious, or failed to state a claim for which relief can be granted, unless the prisoner is under imminent danger of serious physical injury.
Ford now claims, without explanation, that he was in imminent danger at the time he submitted the complaint. The Court must therefore determine whether Ford's allegations reflect that, at the time his complaint was submitted, he was in imminent danger of serious physical injury sufficient to excuse him from the filing prohibition in § 1915(g). Banos v. O'Guin, 144 F.3d 883, 884-84 (5th Cir. 1998) (eligibility for pauper status is determined from the time of filing); Choyce v. Dominguez, 160 F.3d 1068, 1071 n. 4 (5th Cir. 1998) (same). A review of his complaint reflects that he has not established that level of danger. See Carson v. TDCJ-ID, 1998 WL 906989, *1 (N.D. Tex. Dec. 17, 1998).
The Court notes that Ford is now out of prison. However, because the petition was submitted by Ford while he was incarcerated, the provisions of the Prison Litigation Reform Act and Section 1915(g) apply. Gay v. Texas Dept. of Corrections, 117 F.3d 240 (5th Cir. 1997) (the PLRA attaches at the time of filing and is not changed by the fact that inmate is later released).
Ford alleges that he missed a scheduled appointment for a circumcision, which the prison officials were going to reschedule. He also alleges that he was not progressively treated for Hepatitis C, a condition he believes he may have had. These allegations of inadequate medical care do not demonstrate imminent danger of serious physical injury. Carson, 1998 WL 906989, at *1; Gallagher v. McGinnis, 2000 WL 739285, *1 (E.D. La. June 5, 2000).
In Carson, the plaintiff challenged the lack of medical care for his hearing loss and failure to assign him to work compatible with his medical needs and medication. Carson, 1998 WL 906989, at *1. The Court found the allegations of inadequate medical care were insufficient to establish the danger of imminent physical injury sufficient to overcome the prohibition under § 1915(g). Id.
In Gallagher, the plaintiff complained that he received inadequate medical care for excruciating pain and ambulatory difficulties exacerbated by his work assignments and the prison officials' indifference to his medical needs. Gallagher, 2000 WL 739285, at *1. The Court held that the allegations of indifference and inadequate medical care did not establish that the plaintiff was in danger of serious physical injury. Id. at *2.
In both Gallagher and Carson, the courts held that the plaintiffs were simply attempting to tailor their allegations to fall within the scope of the statutory exception to the § 1915(g) prohibition. Gallagher, 2000 WL 739285, at *2 (quoting Carson, 1998 WL 906989, at *1). Similarly, in this case, Ford merely uses the phrase "imminent danger" in his Motion to Reconsider in an effort to craft his pleadings in a manner which would circumvent the bar to his pauper filings. Ford, however, has not alleged any physical danger or physical repercussions resulting from the alleged delay in medical care sufficient to overcome the § 1915(g) bar. Id. Accordingly,
IT IS ORDERED that Henderson Ford's July 10, 2001 Motion for Leave to Proceed In Forma Pauperis (doc. #3) is DENIED.