United States District Court, E.D. Missouri, Northern Division
KENNETH G. CHARRON, Plaintiff,
MICHAEL WHITLOCK, et al., Defendants.
MEMORANDUM AND ORDER
C. HAMILTON UNITED STATES DISTRICT JUDGE.
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. §
U.S.C. § 1915(g)
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).
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).
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.
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.
U.S.C. § 1915(b)(1)
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.
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.
Standard on Initial Review
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.
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).
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.
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).
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).
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.
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
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).
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.
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).
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.
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 ...