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Charron v. Whitlock

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

July 24, 2018

KENNETH G. CHARRON, Plaintiff,
v.
MICHAEL WHITLOCK, et al., Defendants.

          MEMORANDUM AND ORDER

          JEAN C. HAMILTON UNITED STATES DISTRICT JUDGE.

         This matter comes before the Court on the motion of plaintiff Kenneth G. Charron, an inmate at the Northeast Correctional Center, for leave to commence this civil action without prepayment of the required filing fee. (Docket No. 2). Plaintiff has acquired “three strikes” pursuant to 28 U.S.C. § 1915(g) and can only proceed in forma pauperis if he demonstrates that he is “under imminent danger of serious physical injury.” For the reasons discussed below, the Court will grant plaintiff's motion to proceed in forma pauperis against defendants Miguel Paniagua and Larry Allen, and will assess an initial partial filing fee of $2.04. See 28 U.S.C. § 1915(b)(1). However, as to defendants Michael Whitlock, Mr. Lovelace, Corizon Medical Review Board Members, John Does 1-3, Denise Langley, and Mrs. Getti, plaintiff's motion to proceed in forma pauperis is denied, and the claims against these defendants are dismissed without prejudice subject to plaintiff refiling them in a separate complaint and paying the $400 filing fee. See 28 U.S.C. § 1915(g).

         28 U.S.C. § 1915(g)

         The Prison Litigation Reform Act of 1996 enacted what is commonly known as the “three strikes” provision of 28 U.S.C. § 1915(g). Orr v. Clements, 688 F.3d 463, 464 (8th Cir. 2012). 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). An indigent inmate who has acquired three strikes may file a lawsuit if he or she is under imminent danger of serious physical injury. Higgins v. Carpenter, 258 F.3d 797, 800 (8th Cir. 2001). The “imminent danger” exception provides a “safety valve for the three strikes rule to prevent impending harms.” Martin v. Shelton, 319 F.3d 1048, 1050 (8th Cir. 2003). However, in order for this exception to apply, an otherwise ineligible prisoner must be in imminent danger at the time of filing. Ashley v. Dilworth, 147 F.3d 715, 717 (8th Cir. 1998). Allegations of past imminent danger are not sufficient to trigger the exception to § 1915(g). Id. When an inmate is granted leave to proceed in forma pauperis under the imminent danger exception, the in forma pauperis “action must be limited to imminent danger claims that have been properly exhausted.” McAlphin v. Toney, 375 F.3d 753, 755 (8th Cir. 2004).

         Plaintiff is a prisoner and has filed lawsuits in the past. Review of this Court's files and those of the United States District Court for the Western District of Missouri indicate that plaintiff has accumulated three strikes by having three civil actions dismissed as frivolous. See Charron v. Groose, No. 92-CV-4511 (W.D. Mo.); Charron v. Mitchell, No. 92-CV-4567 (W.D. Mo.); and Charron v. Jawade, No. 4:93-CV-2485 (E.D. Mo.). Accordingly, plaintiff may only proceed in forma pauperis if he “is under imminent danger of serious physical injury.” See 28 U.S.C. § 1915(g).

         In the instant complaint, plaintiff alleges that he suffers from a number of medical conditions, including cancer, kidney disease, renal failure, and pain in his arms, legs, and back. Because of these issues, plaintiff is supposed to receive a particular medical diet. Plaintiff alleges that he has been denied this diet by both medical and food preparation staff in retaliation for his filing of grievances. As a result of delays or denials in receiving his medical diet, plaintiff claims that he has suffered constant pain, hunger, loss of weight, and ongoing kidney deterioration.

         Having carefully reviewed the complaint, and for the reasons discussed more fully below, the Court finds that plaintiff has sufficiently alleged claims of imminent danger against defendants Miguel Paniagua and Larry Allen. Accordingly, plaintiff's motion to proceed in forma pauperis as to claims against those defendants will be granted. On the other hand, plaintiff has failed to sufficiently allege imminent danger against defendants Michael Whitlock, Mr. Lovelace, Corizon Medical Review Board Members, John Does 1-3, Denise Langley, and Mrs. Getti. Therefore, as to those defendants, plaintiff's motion to proceed in forma pauperis is denied, and plaintiff's claims against them are dismissed without prejudice, subject to plaintiff refiling a separate complaint and paying the $400 filing fee.

         28 U.S.C. § 1915(b)(1)

         Pursuant to 28 U.S.C. § 1915(b)(1), a prisoner bringing a civil action in forma pauperis is required to pay the full amount of the filing fee. If the prisoner has insufficient funds in his or her prison account to pay the entire fee, the Court must assess and, when funds exist, collect an initial partial filing fee of 20 percent of the greater of (1) the average monthly deposits in the prisoner's account, or (2) the average monthly balance in the prisoner's account for the prior six-month period. After payment of the initial partial filing fee, the prisoner is required to make monthly payments of 20 percent of the preceding month's income credited to the prisoner's account. 28 U.S.C. § 1915(b)(2). The agency having custody of the prisoner will forward these monthly payments to the Clerk of the Court each time the amount in the prisoner's account exceeds $10.00, until the filing fee is fully paid. Id.

         In support of the instant motion, plaintiff submitted an affidavit and a certified inmate account. (Docket No. 3). The certified inmate account statement showed an average monthly deposit of $10.20. The Court will therefore assess an initial partial filing fee of $2.04, which is 20 percent of plaintiff's average monthly deposit.

         Legal Standard on Initial Review

         Under 28 U.S.C. § 1915(e)(2), the Court is required to dismiss a complaint filed in forma pauperis if it is frivolous, malicious, or fails to state a claim upon which relief can be granted. To state a claim for relief under 42 U.S.C. § 1983, a complaint must plead more than “legal conclusions” and “[t]hreadbare recitals of the elements of a cause of action [that are] supported by mere conclusory statements.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A plaintiff must demonstrate a plausible claim for relief, which is more than a “mere possibility of misconduct.” Id. at 679. “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. at 678. Determining whether a complaint states a plausible claim for relief is a context-specific task that requires the reviewing court to draw upon judicial experience and common sense. Id. at 679.

         When reviewing a pro se complaint under § 1915(e)(2), the Court must give it the benefit of a liberal construction. Haines v. Kerner, 404 U.S. 519, 520 (1972). A “liberal construction” means that if the essence of an allegation is discernible, the district court should construe the plaintiff's complain in a way that permits his or her claim to be considered within the proper legal framework. Solomon v. Petray, 795 F.3d 777, 787 (8th Cir. 2015). However, even pro se complaints are required to allege facts which, if true, state a claim for relief as a matter of law. Martin v. Aubuchon, 623 F.2d 1282, 1286 (8th Cir. 1980). See also Stone v. Harry, 364 F.3d 912, 914-15 (8th Cir. 2004) (federal courts are not required to “assume facts that are not alleged, just because an additional factual allegation would have formed a stronger complaint”). In addition, affording a pro se complaint the benefit of a liberal construction does not mean that procedural rules in ordinary civil litigation must be interpreted so as to excuse mistakes by those who proceed without counsel. See McNeil v. United States, 508 U.S. 106, 113 (1993).

         The Complaint

         Plaintiff is an inmate at the Northeast Correctional Center in Bowling Green, Missouri. He brings this complaint pursuant to § 1983. His complaint names the following defendants: Michael Whitlock; Miguel Paniagua; Mr. Lovelace; Corizon Medical Review Board Members, John Does 1-3; Larry Allen; Denise Langley; and Mrs. Getti. The defendants are sued in both their individual and official capacities.

         Plaintiff's statement of claim consists of eighty-eight typed paragraphs. He states that in 2013, a cat scan showed a mass on his right kidney. (Docket No. 1 at 6). After a follow-up MRI, plaintiff states that he was told he needed back surgery. Plaintiff states he had back surgery on January 20, 2014, and that metal rods were placed in his lower back. On January 27, 2014, plaintiff states that he saw Dr. Archer, who told him that he was being put in to see a urologist due to the kidney mass, pain, and a high white blood count. Plaintiff claims that on April 11, 2014, Dr. Archer informed him that the Corizon Medical Review Board had denied his request to see a urologist. On May 2, 2014, plaintiff was informed by a second doctor, Dr. Cabrera, that the Corizon Medical Review Board had denied a request for plaintiff to see his back surgeon for a follow-up appointment. (Docket No. 1 at 6-7). Nonetheless, plaintiff states that he saw a urologist, Dr. Vogt, on May 29, 2014. (Docket No. 1 at 7).

         After meeting with the urologist, plaintiff states that it was determined that he had two tumors and a blockage of his kidney tubules, a condition called acute interstitial nephritis. On August 22, 2014, plaintiff states that Dr. Vogt took biopsies of the two tumors and put in a stint to open his ureter. Plaintiff states that at a follow-up appointment with Dr. Vogt, Dr. Vogt informed him that his right kidney needed to be removed. (Docket No. 1 at 7-8).

         On May 21, 2014, plaintiff states that his medical diet was renewed for another year. (Docket No. 1 at 8). He states that his diet at the time was a “Bland Diet Double Portions, ” and was started as far back as 2002.

         On October 31, 2014, plaintiff had surgery to remove his right kidney. Over the next 28 months, plaintiff states that he saw Dr. Vogt approximately once every ninety days, and that five more cancerous tumors were removed. Plaintiff claims that on June 26, 2015, defendant Allen ordered that plaintiff be given beans twice a day, and no meat, as plaintiff's medical diet. He also alleges he was sometimes given beans three times a day, with no meat. Plaintiff claims that when he asked a cook what Allen was doing, plaintiff was told that Allen was “trying to get you guys off of the special diets.”

         Plaintiff alleges that on June 27, 2015, defendants Allen, Langley, and Getti began giving him food items he was not allowed on his diet. Plaintiff states that when he told these defendants he could not eat the items he had been given, he was “told by all Defendants at different times, if you can't eat it don't, but that is all [you're] going to get.” (Docket No. 1 at 8-9). He alleges that he was told that if he did not like the food he was given, he could do without. He further claims that he has lost twenty pounds due to the inappropriate diet, and that his kidney function has worsened. (Docket No. 1 at 9).

         On July 16, 2015, plaintiff claims that Dr. Cabrera changed his Double Bland Diet to a Double Renal Diet because of his kidney issues, his recurring cancer, and his weight loss. Plaintiff alleges that on July 20, 2015, Dr. Cabrera told plaintiff that defendant Allen had stopped his medical diet. According to plaintiff, Dr. Cabrera told him that Allen's wife, a nurse who works for Corizon, cancelled Dr. Cabrera's diet order. Plaintiff states that Dr. Cabrera advised him that if he filed on Allen and his wife, plaintiff would get his diet. Sometime in July or August 2015, plaintiff states he filed an informal resolution request against Allen and his wife. He further states that on August 29, 2015, he filed a grievance against Allen and his wife claiming that he was not receiving his medical diet, and that he was being subjected to retaliation. (Docket No. 1 at 9-10). On September 3, 2015, plaintiff states that defendant Langley told him he would start receiving a Double Renal Diet. (Docket No. 1 at 10). However, plaintiff alleges his diet was stopped again after he filed a grievance appeal against defendant Allen and his wife on November 4, 2015.

         Plaintiff states that on August 11, 2016, he was called to medical and informed by a nurse that his renal diet was being stopped because his kidney function was a three. He states that he informed the nurse that he was told by defendant Allen, along with defendants Langley and Getti, that he could “get a tray off the line or do without.” Plaintiff claims he saw Dr. Rhodes on August 12, 2016, and that Dr. Rhodes ordered him placed back on his Renal Diet. (Docket No. 1 at 10-11). On August 15, 2016, plaintiff states that he filed another informal resolution request against defendant Allen because Allen would not give him his medical diet. (Docket No. 1 at 11).

         On June 27, 2017, plaintiff states that he met with defendant Whitlock. (Docket No. 1 at 14). Plaintiff claims that Whitlock told him that the Corizon Medical Review Board had denied his and Dr. Vogt's numerous requests that plaintiff be seen by an oncologist. Plaintiff further alleges that Whitlock told him that the Medical Review Board said there was nothing wrong with plaintiff “that could be fixed” and that they were not going to spend any more money on him. On June 28, 2017, plaintiff claims that Whitlock told him that the Medical Review Board was not going to approve anything that he requested for plaintiff.

         Plaintiff states that he had six appointments with defendant Dr. Paniagua on August 9, 2017. He states that Dr. Paniagua confirmed that his cancer was spreading to his prostate. He also claims that Dr. Paniagua told him it was no longer cost-effective to treat him, and that he had become a liability to Corizon. (Docket No. 1 at 15). Plaintiff states that Dr. Paniagua advised him that Corizon was not going to treat his back, legs, arms, and kidney disease, because the cancer was going to get him. Further, plaintiff states that Dr. Paniagua told him that ...


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