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Wilson v. Cauldwell

United States District Court, E.D. Missouri, Eastern Division

July 12, 2017

REGINALD D. WILSON, Plaintiff,
v.
UNKNOWN CAULDWELL, et al., Defendants.

          OPINION, MEMORANDUM AND ORDER

          HENRY EDWARD AUTREY, UNITED STATES DISTRICT JUDGE

         This matter is before the Court upon the motion of plaintiff Reginald D. Wilson for leave to proceed in forma pauperis. The motion will be held in abeyance, and plaintiff will be given the opportunity to submit an amended complaint.

         Plaintiff, a prisoner and a frequent filer of lawsuits, is subject to 28 U.S.C. § 1915(g), which limits a prisoner's ability to obtain in forma pauperis status if he has filed at least three actions that have been dismissed as frivolous, malicious, or for failure to state a claim. Section 1915(g) provides in relevant part:

In no event shall a prisoner bring a civil action ... under this section if the prisoner has, on three or more prior occasions, while incarcerated or detained in any facility, brought an action ... in a court of the United States that was dismissed on the grounds 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) is commonly known as the “three strikes” rule, and it has withstood constitutional challenges. See Higgins v. Carpenter, 258 F.3d 797, 799 (8th Cir. 2001).

         Review of this Court's files reveals that plaintiff has accumulated more than three strikes. See Wilson v. City of St. Louis, No. 4:07-CV-854-SNLJ (E.D. Mo. Jun. 25, 2007); Wilson v. Wilson, No. 4:09-CV-160-MLM (E.D. Mo. Feb. 18, 2009); Wilson v. Hallazzgo, No. 4:09-CV-1346-TCM (E.D. Mo. Sept. 4, 2009); Wilson v. State of Mo., No. 4:11-CV-1014-AGF (E.D. Mo. Jul. 19, 2011). Therefore, the Court may not permit him to proceed in forma pauperis unless he “is under imminent danger of serious physical injury.” 28 U.S.C. § 1915(g).

         In the complaint, plaintiff states he is under imminent danger of serious physical injury because Cauldwell, a corrections officer, assaulted him on March 8, 2017, and later approached him and said “My name is Cauldwell, I'm the one that did that to your eye and face.” (Docket No. 1 at 5). Plaintiff alleges that a doctor and nurse overheard Cauldwell, but ignored him when he asked them about it. Plaintiff alleges Cauldwell's wrongdoing was captured on camera. Plaintiff also states that four cell mates have threatened him, he has been diagnosed with prostate cancer and needs “immediate transport to a better facility to facilitate urgently needed surgery and safety from further assaults, ” and that he also suffers from headaches, nasal hemorrhaging, dizziness, pain in various parts of his body, and boils. Id. Plaintiff states that he seeks “redress from ongoing conditions during this confinement housed with murderers, pedophiles, child molesters, and rapists as cell mates who threaten” him. Id. at 7. For his prayer for relief, plaintiff asks the Court to retrieve the video camera recording, prosecute each defendant to the fullest extent of the law, and compensate him for pain, suffering, and delay in prostate cancer surgery. He also seeks $2, 000, 000.00 in monetary damages for injuries and any future problems the assault and delay have caused.

         Earlier this year, plaintiff filed a similar civil action in this Court against different defendants. Wilson v. Corizon Medical, , No. 4:17-cv-1450-PLC (E.D. Mo. Jun. 22, 2017). There, plaintiff alleged facts regarding the March 8 assault, but he also stated he was being denied necessary surgical treatment for prostate cancer. He was granted in forma pauperis status under the imminent danger exception of § 1915(g), based upon his allegations that he was being denied cancer treatment. Upon initial review, the Court noted the complaint failed to state a claim upon which relief could be granted, and permitted plaintiff leave to amend. Plaintiff filed an amended complaint in which he expressly stated he was in imminent danger of serious physical injury, but he described and sought relief only for past harm. The Court noted that it had become clear that the true focus of plaintiff's complaint was past harm, and that plaintiff had never actually been in imminent danger of serious physical injury. The Court revoked plaintiff's in forma pauperis status and directed him to pay the filing fee. When plaintiff failed to timely do so, the case was dismissed without prejudice to being refiled as a fully-paid complaint.

         In the instant complaint, plaintiff repeatedly uses the words “imminent danger, ” and he mentions prostate cancer. However, he fails to set forth specific facts regarding his disease or his need for cancer treatment, or any other facts tending to show he is truly in imminent danger of serious physical injury. Instead, he focuses on Cauldwell's past actions and seeks to hold him accountable, and to collect monetary damages and gain transfer to another facility. This, along with plaintiff's history of abusing the court system, causes the Court to doubt the credibility of plaintiff's allegations of imminent danger. Even so, the Court will not deny plaintiff's motion to proceed in forma pauperis and dismiss the case at this time. Instead, the Court will give plaintiff the opportunity to file an amended complaint to more clearly set forth his claims. Plaintiff is warned that the filing of an amended complaint replaces the original complaint, and claims that are not re-alleged are deemed abandoned. E.g., In re Wireless Telephone Federal Cost Recovery Fees Litigation, 396 F.3d 922, 928 (8th Cir. 2005). If plaintiff fails to file an amended complaint on a court-provided form within twenty-one (21) days of the date of this Memorandum and Order, the Court will dismiss this case without prejudice.

         Accordingly, IT IS HEREBY ORDERED that plaintiffs motion to proceed in forma pauperis (Docket No. 2) is HELD IN ABEYANCE.

         IT IS FURTHER ORDERED that, within twenty-one (21) days from the date of this Memorandum and Order, plaintiff shall submit an amended complaint on a court-provided form.

         IT IS FURTHER ORDERED that the Clerk of Court shall mail to plaintiff a copy of the Court's Prisoner Civil Rights Complaint form.

         A PRISONER'S INFORMATION AND INSTRUCTIONS FOR FILING A SECTION 1983 CIVIL RIGHTS COMPLAINT IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MISSOURI

         I. INFORMATION

         JURISDICTION

         The United States District Courts have jurisdiction to adjudicate lawsuits brought under the Civil Rights Act of 1871, 42 U.S.C. § 1983.

         EXHAUSTION OF REMEDIES

         Before bringing a lawsuit challenging prison conditions, you must exhaust available administrative remedies. For example, if your institution has a grievance procedure, then you must pursue your claims through all the steps of that procedure. If you do not exhaust available administrative remedies, your case will be dismissed. 42 U.S.C. § 1997e.

         STATING A $ 1983 CLAIM

         A § 1983 claim must contain an alleged violation of a federally protected right by a state actor. If your complaint does not make such an allegation, as to each named ...


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