United States District Court, N.D. Indiana, South Bend Division
CHRISTOPHER J. DIRIG, Plaintiff,
RONNIE NEAL, Defendant.
OPINION AND ORDER
P. SIMON JUDGE
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.
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.
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
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.
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.
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.
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 ...