United States District Court, N.D. Indiana, South Bend Division
CHRISTOPHER J. DIRIG, Plaintiff,
RON NEAL, et al., Defendants.
OPINION AND ORDER
J. Dirig, a prisoner without a lawyer, filed an amended
complaint 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.
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.
complaint, Dirig alleges that weakness in his left leg makes
walking difficult. As a result, he cannot safely access the
showers, and his risk of falling and incurring injury is
exacerbated by seizures, dizziness, and a history of head
injuries. He also alleges that he experiences extreme pain on
a daily basis and has had life-threatening blood clots due to
his lack of mobility. He seeks an orthopedic consultation, a
cane, and pain relief. Because Dirig has already litigated
the issue of whether his ability to access to the showers
constitutes a credible threat of physical harm, the court
will not allow him to proceed on this allegation. See
Dirig v. Warden, 3:18-cv-356 (N.D. Ind. filed May 14,
2018). However, with the remaining allegations, Dirig
adequately alleges imminent danger of serious physical
PLRA circumscribes the scope of the court's authority to
enter an injunction in the corrections context. Where prison
conditions are found to violate federal rights, remedial
injunctive relief must be narrowly drawn, extend no further
than necessary to correct the violation of the Federal right,
and use the least intrusive means necessary to correct the
violation of the Federal right.” Westefer v.
Neal, 682 F.3d 679 (7th Cir. 2012) (quotation marks,
brackets, and citations omitted). Therefore, injunctive
relief - if granted - will be limited to requiring prison
officials to provide medical care and to accommodate Dirig
for his left leg injury as required by the Eighth Amendment.
names the Indiana State Prison, the Department of Correction
Commissioner, and Warden Ron Neal as defendants. He cannot
proceed against the Indiana State Prison because it is a
facility, not an individual, corporation, or governmental
entity that can be sued. See Smith v. Knox County
Jail, 666 F.3d 1037, 1040 (7th Cir. 2012). Further,
though the Commissioner likely has the requisite authority,
the Warden, by virtue of his position, is better situated to
enforce injunctive relief in the event that such relief is
granted, and allowing Dirig to proceed against both
defendants serves no apparent purpose. Therefore, Dirig may
proceed only against Warden Ron Neal in his official
final matter, Dirig filed a motion asking for photographs
that would allow him to demonstrate that his cellhouse is not
equipped with handicap accessible showers. However, Dirig has
not been granted leave to proceed on allegations related to
shower access. Therefore, this motion is denied.
these reasons, the court:
(1) GRANTS Christopher J. Dirig leave to proceed against
Warden Ron Neal in his official capacity on an injunctive
relief claim for medical care and accommodations for his leg
injury as required by the Eighth Amendment;
(2) DISMISSES all other claims;
(3) DISMISSES the Indiana State Prison and the IDOC
(4) DIRECTS the clerk and the United States Marshals Service
to issue and serve process on Warden Ron Neal at the Indiana
Department of Correction with a copy of this order and the
amended complaint (ECF 7) as required by 28 U.S.C. §
(5) ORDERS, pursuant to 42 U.S.C. §1997e(g)(2), Warden
Ron Neal to respond, as provided for in the Federal Rules of
Civil Procedure and N.D. Ind. L.R. 10-1(b), only to the
claims for which the plaintiff has been ...