United States District Court, S.D. Indiana, Indianapolis Division
ENTRY GRANTING IN FORMA PAUPERIS STATUS,
SCREENING COMPLAINT, DISMISSING CERTAIN
DEFENDANTS, AND DIRECTING ISSUANCE AND
SERVICE OF PROCESS
William T. Lawrence, Judge United States District Court.
In Forma Pauperis Status
inmate Richard Kelly is a frequent filer who has had at least
three previous lawsuits dismissed pursuant to 28 U.S.C.
§ 1915A(b)(1) for being frivolous or failing to state a
claim upon which relief may be granted: (1) Kelly v.
Farley, Case No. 3:94-cv-532-RLM (N.D. Ind. Dec. 13,
1994); (2) Kelly v. Zoley, Case No.
1:17-cv-598-WTL-MPB (S.D. Ind. July 25, 2017); and (3)
Kelly v. Witty, Case No. 1:17-cv-989-TWP-DML (S.D.
Ind. July 26, 2017). This makes him ineligible for in
forma pauperis status thus requiring full payment of
filing fees upon the commencement of a new lawsuit. 28 U.S.C.
§ 1915(g). The sole exception to this filing restriction
is if the prisoner/plaintiff “is under imminent danger
of serious physical injury.” Id.
filed this case on October 11, 2017, and seeks in forma
pauperis status. Dkt. 2. Without advising the Court that
he has three previous “strikes” under Section
1915(A), he contends in conclusory fashion that he should be
allowed to proceed because he is in imminent danger of
serious physical injury. Dkt. 2, p. 4. In an affidavit he
submits to support this assertion, Kelly writes that
“defendants continue to provide a level of healthcare
known to be of no value in combating [Kelly's level] of
pain and suffering. Dkt. 3, ¶ 1. He asserts his medical
condition is growing progressively worse and possibly
permanent. Finally, he asserts that he is suffering daily
from “undue physical, mental [and] emotional daily
pain.” Dkt. 3. ¶ 3.
order to meet the imminent danger requirement of 28 U.S.C.
§ 1915(g), the ‘threat or prison conditions [must
be] real and proximate.' When prisoners seeking to avoid
the three strikes provision ‘allege only a past injury
that has not recurred, courts deny them leave to proceed
IFP.'” Ciarpaglini v. Saini, 352 F.3d 328,
330 (7th Cir. 2003) (quoting Lewis v. Sullivan, 279
F.3d 526, 529 (7th Cir. 2002)). “Allegations of past
harm do not suffice; the harm must be imminent or
occurring” at the present time. Id. at 330.
case, Kelly asserts he has continuing daily pain that is not
being treated. Construing his affidavit and complaint
liberally, the Court will allow this action to proceed
because the “harm” is occurring at the present
motion for leave to proceed in forma pauperis, Dkt.
No. 2, is granted. Despite this ruling,
plaintiff still owes the entire filing fee. “All [28
U.S.C.] § 1915 has ever done is excuse prepayment of the
docket fees; a litigant remains liable for them, and for
other costs, although poverty may make collection
impossible.” Abdul-Wadood v. Nathan, 91 F.3d
1023, 1025 (7th Cir. 2006). A collection order will enter
separately to collect the full filing fee.
Screening of the Complaint
plaintiff is a prisoner, the complaint is subject to the
screening requirements of 28 U.S.C. § 1915A. This
statute directs that the court shall dismiss a complaint or
any claim within a complaint which “(1) is frivolous,
malicious, or fails to state a claim upon which relief may be
granted; or (2) seeks monetary relief from a defendant who is
immune from such relief.” Id. To satisfy the
notice-pleading standard of Rule 8 of the Federal Rules of
Civil Procedure, a complaint must provide a “short and
plain statement of the claim showing that the pleader is
entitled to relief, ” which is sufficient to provide
the defendant with “fair notice” of the claim and
its basis. Erickson v. Pardus, 551 U.S. 89, 93
(2007) (per curiam) (citing Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007) and quoting
Fed.R.Civ.P. 8(a)(2)); see also Wade v. Hopper, 993
F.2d 1246, 1249 (7th Cir. 1993) (noting that the main purpose
of Rule 8 is rooted in fair notice: a complaint “must
be presented with intelligibility sufficient for a court or
opposing party to understand whether a valid claim is alleged
and if so what it is.”) (quotation omitted)). The
complaint “must actually suggest that the plaintiff has
a right to relief, by providing allegations that raise a
right to relief above the speculative level.” Windy
City Metal Fabricators & Supply, Inc. v. CIT Tech. Fin.
Servs., 536 F.3d 663, 668 (7th Cir. 2008) (quoting
Tamayo v. Blagojevich, 526 F.3d 1074, 1084 (7th Cir.
2008)). The Court construes pro se pleadings liberally, and
holds pro se pleadings to less stringent standards than
formal pleadings drafted by lawyers. Obriecht v.
Raemisch, 517 F.3d 489, 491 n.2 (7th Cir. 2008).
makes a general claim against Bruce Ippel, Loretta Dawson,
Jeff Glover, Alicia Coomer, Ms. Hari, and Melanie Johnson
that they have refused to provide him with adequate and
recommended healthcare for his chronic conditions, resulting
in untreated excruciating pain every day. This Eighth
Amendment deliberate indifference claim shall
proceed against these defendants.
John/Jane Doe defendants named by Kelly are
dismissed. “[I]t is pointless to
include [an] anonymous defendant . . . in federal court; this
type of placeholder does not open the door to relation back
under Fed. R. Civ. P. 15, nor can it otherwise help
the plaintiff.” Wudtke v. Davel, 128 F.3d
1057, 1060 (7th Cir. 1997) (internal citations omitted). If
later in the progression of this action, Kelly is able to
learn the name of the unknown defendants, he may seek leave
to add them to this action. This must be done by the deadline
that will be set in a pretrial schedule to be entered after
all other defendants have answered, or with good cause shown
pursuant to Fed. R. Civ. P. 16(b)(4).
also names “Regional Medical Director” as a
defendant. The Court does not know whether this title is
associated with a Corizon, Wexford, or Department of
Correction employee. Therefore claims against the Regional
Medical Director will not proceed at this
time and is dismissed without prejudice.
When plaintiff learns the name of the person holding this
position, he may seek leave to add that person as a defendant
to this action. This must be accomplished by the same
deadline applicable to the John/Jane Doe defendants.
Issuance and Service of Process
clerk is designated pursuant to Fed. R.
Civ. P. 4(c)(3) to issue process to defendants Bruce
Ippel, Loretta Dawson, Jeff Glover, Alicia Coomer, Ms. Hari,
and Melanie Johnson in the manner specified by Rule 4(d).
Process shall consist of the complaint, Dkt. No. 1,
plaintiff's affidavit, Dkt. No. 3, applicable forms
(Notice of ...