United States District Court, N.D. Indiana, South Bend Division
QUINTIN J. MAYWEATHER-BROWN, Plaintiff,
MARK SEVIER, Defendant.
OPINION AND ORDER
L. Miller, Jr. Judge
J. Mayweather-Brown, a prisoner without a lawyer, filed a
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 can't 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.
Mayweather-Brown has accrued three strikes under the Prison
Litigation Reform Act and can't proceed in this case
without full payment of the filing fee, absent an allegation
of imminent danger of serious physical injury. Nevertheless,
the court granted him leave to proceed in forma pauperis
based on allegations of extreme temperatures and inadequate
ventilation. ECF 2. The Warden filed a response, contesting
the allegation of imminent harm with his sworn declaration.
ECF 7. Mr. Mayweather-Brown replied that he had since been
reassigned to a cell that was even more inhospitable. ECF 11.
He alleged that the cell had no air conditioning and was
covered in black mold and that he required medical treatment
for mild asthma attacks caused by the cell conditions.
Warden filed a second response, conceding that Mr.
Mayweather-Brown had been reassigned but denying that the
cell posed a substantial risk to Mr. Mayweather-Brown's
medical condition. ECF 13. The Warden provides photographs of
the cell vents and attests that the coloring near the vents
and lights was not black mold but the remnants of material
placed by inmates near the vents and lights to prevent proper
operation. ECF 13-1. He further attests that the ventilation
now functions properly in the cell. The Warden also provides
temperature recordings that show that temperature in Mr.
Mayweather-Brown's dormitory from August 6, 2018, to
August 15, 2018, fluctuated between seventy degrees and
seventy-five degrees Fahrenheit. ECF 13-2.
Warden also attached the affidavit of Dr. Liaw, who has
treated Mr. Mayweather-Brown for asthma since 2013. ECF 13-3.
Dr. Liaw attests that Mr. Mayweather-Brown suffers from mild
asthma and continues to receive treatment for this condition,
including access to an inhaler, nebulizer treatments, allergy
medication, and steroids. The Warden also submitted Mr.
Mayweather-Browns' medical records from July 2017 to July
2018, which reflect that Mr. Mayweather- Brown receives
medical attention on a regular basis, often several times in
a single week. ECF 9.
Warden challenges Mr. Mayweather-Brown's allegation of
imminent danger of physical harm. The court of appeals has
explained that “imminent danger” within the
meaning of 28 U.S.C. § 1915(g) requires a “real
and proximate” threat of serious physical injury to a
prisoner. Ciarpaglini v. Saini, 352 F.3d 328, 330
(7th Cir. 2003) (citing Lewis v. Sullivan, 279 F.3d
526, 529 (7th Cir. 2002)). “If a defendant contests a
plaintiff's imminent-danger allegations . . . the court
must determine the allegations' credibility, either by
relying on affidavits or depositions or by holding a
hearing.” Taylor v. Watkins, 623 F.3d 483, 485
(7th Cir. 2010) (citing Gibbs v. Roman, 116 F.3d 83
(3rd Cir. 1997)).
record, Mr. Mayweather-Brown's allegation of imminent
harm of physical danger is not credible. The Warden has
represented that there is no black mold in the cell and that
the ventilation system is operational. He has submitted
photographs and provided a reasonable explanation for the
dark material near the vents and lights. The temperature logs
reflect consistently tolerable temperatures in Mr.
medical evidence indicates that Mr. Mayweather-Brown's
asthma is mild rather than severe and that he is receiving
appropriate treatment for the condition. In his reply, Mr.
Mayweather-Brown concedes that he had only minor asthma
attacks and doesn't contest that he has received
appropriate treatment. The medical evidence indicates that
Mr. Mayweather-Brown's asthma is a chronic condition, and
there is no credible evidence that his cell conditions caused
the recent mild asthma attacks. Because Mr.
Mayweather-Brown's allegation of imminent danger
isn't credible, he can no longer proceed in forma
pauperis; instead he must pay the filing fee to proceed in
final matter, Mr. Mayweather-Brown filed a motion for
preliminary injunction related to an excessive force
incident. ECF 14. “[T]he preliminary injunctive relief
sought must relate to the claims pending in the underlying
lawsuit.” Oliver v. Lyerla, 2017 WL 3498789,
at *2 (S.D. Ill. 2017) (citing Devose v. Herrington,
42 F.3d 470, 471 (8th Cir. 1994)). Though the allegations in
this motion are serious, they bear no relevance to the claim
in this case, which primarily concerns the quality of air in
Mr. Mayweather-Brown's cell. Though Mr. Mayweather-Brown
may be entitled to pursue this excessive force claim in
another case, his motion in this case will be denied.
these reasons, the court:
(1) VACATES the Order Granting Leave to Proceed In Forma
Pauperis (ECF 2);
(2) DIRECTS the clerk to unseal the medical records (ECF 9);
(3) ORDERS Quintin J. Mayweather-Brown to pay the $400.00
filing fee by Septem ...