United States District Court, N.D. Indiana, South Bend Division
CHRISTOPHER J. DIRIG, Plaintiff,
RON NEAL, et al., Defendants.
OPINION AND ORDER
DEGUILIO JUDGE UNITED STATES DISTRICT COURT
J. Dirig, a prisoner without a lawyer, commenced this case by
filing a motion for a preliminary injunction but did not pay
a filing fee. 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.” Coleman v. Tollefson, 135 S.Ct. 1759,
1761 (2015). For purposes of § 1915(g), a strike is
defined as a dismissal on grounds that an action is
frivolous, malicious, or fails to state a claim is. 28 U.S.C.
§ 1915(g). 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. Id.
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. See Dirig v. Warden,
3:18-cv-356 (N.D. Ind. filed May 14, 2018); Dirig v.
GEO/New Castle Correctional Facility, 1:17-cv-70 (S.D.
Ind. filed January 9, 2017). In order to meet the imminent
danger standard, the threat at issue must be real and
proximate. Ciarpaglini v. Saini, 352 F.3d 328, 330
(7th Cir. 2003). Only “genuine emergencies”
qualify as a basis for circumventing § 1915(g).
Lewis v. Sullivan, 279 F.3d 526, 531 (7th Cir.
instant motion, Dirig seeks an order directing prison
officials to provide him with crutches. He alleges that he
cannot walk “unless he holds onto objects, furniture,
or walls” and that medical staff has refused to provide
him with crutches. Based on the allegations, it appears that
the lack of assistive devices causes Dirig some difficulty,
and the allegations may even state a claim of deliberate
indifference under the Eighth Amendment. See Greeno v.
Daley, 414 F.3d 645, 653 (7th Cir. 2005). However, it is
not clear from the motion that the refusal to provide
crutches amounts to an imminent threat of serious physical
injury or presents a genuine emergency. Without additional
detail regarding the need for crutches, Dirig cannot proceed
on these allegations.
also seeks an order to allow him to remain in administrative
segregation until his release from custody in September 2019.
He alleges that, on October 15, 2018, he refused to sign
documents for placement in general population. Dirig also
contends that he would not be safe in general population
because he would be unable to defend himself from other
inmates. Under the Eighth Amendment, a duty is imposed on
prison officials “to take reasonable measures to
guarantee the safety of inmates.” Farmer v.
Brennan, 511 U.S. 825, 832 (1994). “[P]rison
officials have a duty to protect prisoners from violence at
the hands of other prisoners.” Id. at 833.
“[I]n order to state a section 1983 claim against
prison officials for failure to protect, [the plaintiff] must
establish: (1) that he was incarcerated under conditions
posing a substantial risk of serious harm and (2) that the
defendants acted with deliberate indifference to his health
or safety. Santiago v. Walls, 599 F.3d 749,
756 (7th Cir. 2010).
context of failure to protect cases, the Seventh Circuit has
equated “substantial risk” to “risks so
great that they are almost certain to materialize if nothing
is done.” Brown v. Budz, 398 F.3d 904, 911
(7th Cir. 2005). These risks include “risks
attributable to detainees with known propensities of violence
toward a particular individual or class of individuals; to
highly probable attacks; and to particular detainees who pose
a heightened risk of assault to the plaintiff” or
heightened risks based on the characteristics of the
plaintiff. Id. “[A] deliberate indifference
claim cannot be predicated merely on knowledge of general
risks of violence in prison.” Weiss v. Cooley,
230 F.3d 1027, 1032 (7th Cir. 2000). As noted by the Seventh
Prison employees who act with deliberate indifference to the
inmates' safety violate the Eighth Amendment. But to be
guilty of “deliberate indifference” they must
know they are creating a substantial risk of bodily harm. If
they place a prisoner in a cell that has a cobra, but they do
not know that there is a cobra there (or even that there is a
high probability that there is a cobra there), they are not
guilty of deliberate indifference even if they should have
known about the risk, that is, even if they were
negligent-even grossly negligent or even reckless in the tort
sense-in failing to know. But if they know that there is a
cobra there or at least that there is a high probability of a
cobra there, and do nothing, that is deliberate indifference.
Billman v. Indiana Dep't of Corr., 56 F.3d 785,
788 (7th Cir. 1995).
Dirig expresses concern regarding his ability to defend
himself from attacks by other inmates, he alleges nothing to
suggest that there is a substantial risk that such an attack
will occur, nor can the court infer from the allegations that
such an attack is “almost certain to materialize if
nothing is done.” Similarly, there is nothing to
suggest that placement in general population would put Dirig
in imminent danger of serious physical injury. For example,
he does not allege that he has received threats of violence,
explain why other inmates would target him, or even identify
the date he might be placed in general population. Absent any
suggestion that Dirig is faced with a substantial and
imminent risk of attacks from other inmates, he cannot
proceed on these allegations.
the court will allow Dirig an opportunity to clarify his
claims by filing a complaint. See Luevano v.
Wal-Mart, 722 F.3d 1014 (7th Cir. 2013). A copy of this
court's approved form - Prisoner Complaint (INND Rev.
8/16) - is available upon request from the prison law
library. On the first page of the complaint, Dirig must put
the cause number of this case which is on the first page of
this order However, he should only file a complaint if he
believes that he can address the deficiencies mentioned in
these reasons, the court:
DENIES the motion for a preliminary injunction (ECF 1);
GRANTS Christopher J. Dirig until November 22, 2018,
to file a complaint; and
CAUTIONS Christopher J. Dirig that, if he does not respond by
that deadline, this case will be ...