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Dirig v. Neal

United States District Court, N.D. Indiana, South Bend Division

July 12, 2018

CHRISTOPHER J. DIRIG, Plaintiff,
v.
RONNIE NEAL, Defendant.

          OPINION AND ORDER

          PHILIP P. SIMON JUDGE

         Christopher J. Dirig, a prisoner without a lawyer, filed an amended complaint. The Prisoner Litigation Reform Act gives authority to federal courts to allow plaintiffs to initiate actions without the prepayment of filing fees. 28 U.S.C. § 1915. That authority is constrained by Section 1915(g), commonly referred to as the “three strikes rule.” See e.g., Coleman v. Tollefson, 135 S.Ct. 1759, 1761 (2015). A dismissal on grounds that an action is frivolous, malicious, or fails to state a claim is a strike for purposes of § 1915(g). Id. A prisoner who has accumulated three strikes cannot proceed without a full prepayment of the filing fee unless he can establish that he is in imminent danger of serious physical injury. 28 U.S.C. § 1915(g).

         Dirig has accrued three strikes under the Prison Litigation Reform Act and cannot proceed in this case without full payment of the filing fee, absent an allegation of imminent danger of serious physical injury. Nevertheless, I granted him leave to proceed in forma pauperis based on his allegations that he cannot walk and as a result he cannot safely navigate his cell to access his toilet and cannot safely navigate outside of his cell to access the showers. Additionally, I ordered Warden Ron Neal to respond to the allegation of imminent danger by explaining Dirig's medical condition, his housing condition, his ability to use the toilet and shower, and other relevant information. The Warden filed a response, contesting the allegation of imminent harm with his sworn declaration. Dirig replies by filing various motions, including objections to the Warden's exhibits.

         FACTUAL BACKGROUND

         According to the amended complaint, on May 2, 2018, Dirig transferred to the Indiana State Prison. ECF 22. He had suffered a weightlifting injury about one year earlier. Dirig was placed in the segregation unit and became concerned that the cell did not accommodate his injuries with respect to access to the toilet and shower. Though Dirig had a wheelchair when he first arrived, medical staff determined that it was unnecessary on May 17, 2018. He described his injuries during that medical encounter as follows:

Nurse Stewart: How do you use the toilet?
Dirig: I use my hands to lift my body weight and kind of use my right leg to slide myself to the end of the bunk. When I get to the toilet, I grab the sink, kind of fall forward to lean again the wall, and hope I don't fall in or break my neck.
Nurse Stewart: [How do you move around your cell?]
Dirig: I don't because the wheelchair doesn't fit, and I can't stand or walk on my own, so I just sit or lay around all day.
Nurse Stewart: How do you shower?
Dirig: I haven't had a shower since I arrived on May 2, 2018.

         Dirig then met with Dr. Marthakis and demonstrated that he could not walk even a few steps due to the weakness and numbness in his left leg. Nevertheless, Dr. Marthakis determined that Dirig did not need a wheelchair.

         The Warden supports his declaration with several exhibits, which include the opinions of medical staff, the observations of correctional staff, a layout of the segregation unit, and video recordings of Dirig. ECF 27. Dr. Liaw, who treated Dirig at the Westville Correctional Center, submitted an affidavit. ECF 27-8. He attests that, on October 4, 2017, he noted that Dirig had progressed from a wheelchair to a walker following the weightlifting injury. Dirig told him that he was able to walk and merely used the walker for balance. Dr. Liaw noted that other staff observed Dirig carrying his walker for short distances. He observed no objective signs of muscular skeletal deficits, except for the use of a walker. Though Dirig reported up to five instances of bladder incontinence per day, Dr. Liaw could not confirm these findings after consulting with security staff. Dirig also refused additional physical therapy sessions. On this basis, Dr. Liaw suspected that Dirig had a higher level of functioning than he admitted.

         On November 17, 2017, Dr. Jackson concluded that Dirig no longer needed a walker for ambulation and that Dirig was malingering. He based this conclusion on Dirig's medical records and his own observation of Dirig. He noted the absence of evidence for the ...


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