Summary
holding that "[i]t is a requirement of the PLRA . . . that the alleged danger which might justify allowing the prisoner to proceed despite his three prior 'strikes' must be related to claims in the complaint"
Summary of this case from Woods v. Crockett-HarrisOpinion
Case No. 2:11-cv-0109.
March 8, 2011
ORDER
Plaintiff, Dennis Pointer, a state prisoner, filed this civil rights action under 42 U.S.C. § 1983 against various state prison officials. He has not paid the filing fee, but has filed a motion for leave to proceed in forma pauperis. That motion was accompanied by the required trust fund statement from his institution. In the usual case, the Court would assess a partial filing fee based on that trust fund statement.
However, Mr. Pointer has had three or more cases or appeals dismissed in the past as frivolous or for failure to state a claim. See, e.g., Pointer v. Brown Williamson, Case No. 1:97-cv-267 (S.D. Ohio); Pointer v. Jorgensen, Case No. 1:00-cv-861 (S.D. Ohio); Pointer v. Lyon, Case No. 1:02-cv-486 (S.D. Ohio). Under that portion of the Prison Litigation Reform Act codified at 28 U.S.C. § 1915(g), the so-called "three strikes" rule, a prisoner may not bring a suit in forma pauperis if that prisoner "has, on 3 or more 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." Thus, he is not entitled to proceed in forma pauperis and to pay the filing fee in installments unless he can demonstrate that he meets the "imminent danger" requirement of § 1915(g). Otherwise, he must pay the entire filing fee (currently $350.00) at the outset of the case.
Mr. Pointer has addressed that issue in his initial motion (#1). There, he argues that he satisfies the "imminent danger" requirement because he has a foot condition that is causing him pain and that he requires surgery. However, he claims that his institutional doctor will not refer him to a consulting specialist, a step that must precede any surgery. He also claims to be suffering from high blood pressure and from dizziness due to that condition and the medications he takes for it, and is at risk of injury because he has been denied a bottom range assignment and must climb stairs on a routine basis, putting him at risk of falling. His complaint addresses a number of different subjects, only one or two of which deal with the same medical complaint which he claims to be the reason for his being in imminent danger of harm. He has also attached a number of institutional grievance forms to his complaint that deal with these various issues. They show, among other things, that this problem began while Mr. Pointer was housed at the Allen Correctional Institution, that he has since been transferred, first, to the Belmont Correctional Institution and then recently to the Chillicothe Correctional Institution, and that he has filed only one grievance about his foot problems at his current institution and has not yet received a response.
Certainly, the ongoing denial of medical care can, in some cases, put an inmate in sufficient danger that he satisfies the "three strikes" provision of the PLRA. For example, inCiarpaglini v. Saini, 352 F.3d 328 (7th Cir. 2003), the court permitted an inmate to proceed under the "imminent danger" exception when he alleged that he suffered from ADHD, bipolar disorder, and a panic disorder, and that his medications for these conditions was withdrawn, causing him to suffer heart palpitations, chest pains, labored breathing, choking sensations, and paralysis. It cited to other decisions involving health care issues where the standard was also deemed satisfied — for example, when an inmate claimed he experienced headaches due to exposure to environmental contaminants, or that he needed dental care due to a mouth infection. See id., citing Gibbs v. Cross, 160 F.3d 962, 965-66 (3rd Cir. 1998); McAlphin v. Toney, 281 F.3d 709, 710 (8th Cir. 2002).
It does not appear that the Court of Appeals for the Sixth Circuit has precisely defined this term, see Rittner v. Kinder, 290 Fed. Appx. 796 (6th Cir. August 20, 2008), so decisions from other Courts of Appeals may be helpful to determine its meaning. To that extent, this Court accepts the proposition that an inmate suffering from a medical condition who is being denied any, or any meaningful, treatment, might be able to come within the exception permitted by § 1915(g). However, it is clear from bothCiarpaglini v. Saini and Rittner that in order for the harm alleged to satisfy 1915(g), it must be "imminent" as opposed to something which happened in the past, and the danger of physical harm must be real. See Rittner; see also Jennings v. Hall, 2010 WL 748239, *3 (W.D. Mich. March 3, 2010). Additionally, the injury which is allegedly imminent must be a serious one, such as death or injury which might occur if a chronic medical condition is left untreated. See Ibrahim v. District of Columbia, 463 F.3d 3 (D.C. Cir. 2006) (alleged failure to treat hepatitis C).
The way in which Mr. Pointer has presented his claim of imminent danger of serious physical harm makes it somewhat hard to determine if he should be allowed to proceed with this case notwithstanding the prior dismissals. He has not included an affidavit or sworn statement about it. None of the defendants he names in his complaint are employed by the Chillicothe Correctional Institution, and he has only been there a few months, so most of his allegations of inadequate medical care are directed toward employees of the Allen Correctional Institution. Of course, since he is no longer at that institution, he cannot credibly claim that those defendants are currently acting in a way that is putting him in imminent danger of serious harm. As far as the issue of either a lower range or bottom bunk is concerned, he asserts that these requests were denied by Dr. Shank and Mr. Croft, but his complaint indicates that their denials related only to his situation at the Allen Correctional Institution. Finally, he is not alleging a complete denial of medical care, but only a disagreement with the care he has been given, which appears to have consisted of orthotics for his foot problem rather than surgery. And there are cases which have held that suffering continued chronic foot pain and swelling is not the kind of injury that satisfies the "imminent danger of physical injury" exception. See, e.g., Wilcher v. Crosby, 2005 WL 2205021 (N.D. Fla. September 9, 2005), adopted and affirmed 2005 WL 2406037 (N.D. Fla. September 29, 2005).
There is one other issue which is raised by the potential application of the "three strikes" rule here. As noted above, many of the counts of the complaint do not relate to Mr. Pointer's ongoing foot problem or other medical problems that are allegedly placing him in imminent danger of serious injury. It is a requirement of the PLRA, however, that the alleged danger which might justify allowing the prisoner to proceed despite his three prior "strikes" must be related to claims in the complaint; that is, "the prisoner's complaint seek to redress an imminent danger of serious physical injury and that this danger must be fairly traceable to a violation of law alleged in the complaint." Pettus v. Morgenthau, 554 F.3d 293, 297 (2d Cir. 2009). In other words, the existence of a threat of injury can be used to excuse the payment of the filing fee only for a complaint that relates to the same injury, and not to some separate or unrelated occurrence.
In order to bring this matter to a resolution, the Court orders Mr. Pointer to support his request for leave to proceed in forma pauperis with an affidavit explaining the course of treatment he has received since he arrived at the Chillicothe Correctional Institution, accompanied by any medical records or grievances related to his claim that he is still being denied treatment in a way that threatens his future health or safety. It shall also address his current housing and bunk assignments and explain any efforts he has made to be granted accommodations. Once that affidavit is received (and Mr. Pointer shall submit it within twenty-one days), the Court will both make a determination of whether he is entitled to proceed on any claims without prepayment of the entire filing fee, and will sever any unrelated claims and give him an opportunity to pay the filing fee if he wishes to proceed with those claims. All pending motions are held in abeyance until these issues are resolved.
Mr. Pointer is advised that the failure to respond to this order will likely result in the assessment of the full $350.00 filing fee and could result in the dismissal of the case if that fee is not paid.