Wilson v. Cauldwell et al, No. 4:2017cv01456 - Document 7 (E.D. Mo. 2017)

Court Description: OPINION MEMORANDUM AND ORDER - IT IS HEREBY ORDERED that plaintiff's 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, p laintiff 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 Courts Prisoner Civil Rights Complaint form. (Amended/Supplemental Pleadings due by 8/2/2017.) Signed by District Judge Henry Edward Autrey on 7/12/17. (**Instructions and a Copy of the Court's Prisoner Civil Rights Complaint Form attached to this Order and sent to the petitioner.**)(KJS)
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Wilson v. Cauldwell et al Doc. 7 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MISSOURI EASTERN DIVISION REGINALD D. WILSON, Plaintiff, v. UNKNOWN CAULDWELL, et al., Defendants. ) ) ) ) ) ) ) ) ) No. 4:17CV1456 HEA OPINION, MEMORANDUM AND ORDER 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. Dockets.Justia.com 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-CV1346-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, et al., 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 2 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 3 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 plaintiff=s 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. Dated this 12th day of July, 2017 ___________________________________ HENRY EDWARD AUTREY UNITED STATES DISTRICT JUDGE 4 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MISSOURI DIVISION (Enter above the full name of the Plaintiff in this action. Include prison registration number.) v. (Enter above the full name of ALL Defendant(s) in this action. Fed. R. Civ. P. 10(a) requires that the caption of the complaint include the names of all the parties. Merely listing one party and "et al." is insufficient. Please attach additional sheets if necessary. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Case No. (To be assigned by Clerk) In what capacity are you suing the defendants? G G G Official Individual Both PRISONER CIVIL RIGHTS COMPLAINT UNDER 42 U.S.C. § 1983 I. PLACE OF PRESENT CONFINEMENT: II. PREVIOUS CIVIL ACTIONS: A. Have you brought any other civil actions in state or federal court dealing with the same facts involved in this action or otherwise relating to your confinement? YES [ ] NO [ ] B. If your answer to “A” is YES, describe the action(s) in the space below. If there is more than one action, you must describe the additional action(s) on a separate piece of paper, using the same format as below. 1. Parties to previous civil action: Plaintiff: Defendant(s): 2. 3. Docket or case number: 4. Name of Judge: 5. Basic claim made: 6. III. Court where filed: Present disposition (Is the case still pending? Is it closed? If closed, was it appealed?): GRIEVANCE PROCEDURES: A. Is there a prisoner grievance procedure at the institution in which you are incarcerated? YES B. [ ] NO [ ] Have you presented this grievance system the facts which are at issue in this complaint? YES [ ] NO -2- [ ] C. D. IV. If your answer to “B” is YES, what steps did you take: If your answer to “B” is NO, explain why you have not used the grievance system: PARTIES TO THIS ACTION: A. Plaintiff 1. 2. Plaintiff’s address: 3. B. Name of Plaintiff: Registration number: Defendant(s) 1. Name of Defendant: 2. Defendant’s address: 3. Defendant’s employer and job title: 4. Additional Defendant(s) and address(es): -3- V. COUNSEL A. Do you have an attorney to represent you in this action? YES B. [ ] NO [ ] If your answer to “A” is NO, have you made an effort to contact an attorney to represent you in this matter? YES [ ] NO [ ] C. If your answer to “B” is YES, state the name(s) and address(es) of the attorneys you contacted and the results of those efforts: D. If your answer to “B” is NO, explain why you have not made such efforts: E. Have you previously been represented by counsel in a civil action in this Court? YES F. [ ] NO [ ] If your answer to “E” is YES, state the attorney’s name and address: -4- VI. Statement of claim (State as briefly as possible the facts of your case. Describe how each defendant is involved. You must state exactly what each defendant personally did, or failed to do, which resulted in harm to you. Include also the names of other persons involved, dates, and places. Be as specific as possible. State your claims in numbered paragraphs. You may use additional paper if necessary): -5- VII. RELIEF State briefly and exactly what you want the Court to do for you. Do not make legal arguments. (Note: If you are a state prisoner and you seek from this Court relief that affects the length or duration of your imprisonment, your case must be filed on a § 2254 form.) VIII. MONEY DAMAGES: A) Do you claim either actual or punitive monetary damages for the acts alleged in this complaint? YES G NO G B) If your answer to "A" is YES, state below the amount claimed and the reason or reasons you believe you are entitled to recover such money damages: IX. Do you claim that the wrongs alleged in the complaint are continuing to occur at the present time? YES [ ] NO Signature of attorney or pro se Plaintiff [ ] Date -6-