Kain v. Correctional Medical Services et al

Filing 102

ORDER ADOPTING 99 Report and Recommendations; Further, denying 97 Motion for Leave to Appeal in forma pauperis. Plaintiff may renew his motion for leave to appeal IFP with the Court of Appeals for the Eighth Circuit. Signed by Honorable Susan O. Hickey on July 19, 2018. (mjm)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
HOT SPRINGS DIVISION
BILLY J. KAIN, JR.
v.

PLAINTIFF
Case No. 6:17-cv-6037

CORRECT CARE SOLUTIONS, et al.

DEFENDANTS
ORDER

Before the Court is the Report and Recommendation filed July 2, 2018, by the Honorable
Barry A. Bryant, United States Magistrate Judge for the Western District of Arkansas. (ECF No.
99). Judge Bryant recommends that the Court deny Plaintiff Billy J. Kain, Jr.’s Motion to Appeal
In Forma Pauperis. Plaintiff filed objections to the Report and Recommendation. (ECF No. 101).
The Court finds the matter ripe for consideration.
I. BACKGROUND
On March 13, 2017, Plaintiff filed this case pursuant to 42 U.S.C. § 1983, alleging that
Defendants violated his constitutional rights from January 10, 2017, through August 1, 2017, while
he was incarcerated in the Arkansas Department of Correction – Ouachita River Unit. Specifically,
Plaintiff alleges that Defendants denied him the medicine dicyclomine for his Crohn’s Disease1
and that Defendants denied him knee replacement surgery, which an outside physician prescribed.
Plaintiff was a “three striker” under the Prison Litigation Reform Act at the time he filed

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“Crohn’s Disease is an inflammatory bowel disease (IBD). It causes inflammation of the lining of [the] digestive
tract, which can lead to abdominal pain, severe diarrhea, fatigue, weight loss and malnutrition.” Cook v. Colvin, No.
15-4145-CV-C-REL-SSA, 2016 WL 4639186, at *3 n.1 (W.D. Mo. Sept. 6, 2016). “Dicyclomine relieves spasms of
the muscles in the stomach and intestines.” Roam v. Colvin, No. 2:12-cv-2256-JRM, 2013 WL 6048756, at *3 (W.D.
Ark. Nov. 15, 2013).

this action. 2 Based on Plaintiff’s allegations that he was being denied treatment for his Crohn’s
Disease, and out of an abundance of caution, the Court found that Plaintiff satisfied the “imminent
danger” exception to the PLRA’s “three strike” rule. Accordingly, the Court granted Plaintiff IFP
status. (ECF No. 12).
On May 14, 2018, Judge Bryant issued the instant Report and Recommendation,
recommending that the Court grant Defendants’ motion to revoke Plaintiff’s IFP status, thereby
giving him thirty days to pay the full filing fee or face dismissal of this case without prejudice. On
May 30, 2018, Plaintiff filed objections to the Report and Recommendation. On June 20, 2018,
the Court overruled Plaintiff’s objections and adopted Judge Bryant’s Report and
Recommendation, thereby revoking Plaintiff’s IFP status and ordering him to pay the full filing
fee in this case within thirty days or face dismissal of the case. (ECF No. 94). In doing so, the
Court noted that Plaintiff’s initial complaint raised contradictory allegations regarding Crohn’s
Disease, specifically, that Defendants are harming him by presently denying him the medicine
dicyclomine to treat his Crohn’s Disease and that Defendants harmed him from 1997 until 2017
by unnecessarily giving him dicyclomine for Crohn’s Disease that he never had. Based on these
mutually exclusive allegations, the Court found that Plaintiff had not sufficiently alleged facts to
satisfy the “imminent harm” exception to allow him to proceed IFP.
On July 2, 2018, Plaintiff filed a notice of appeal, indicating that he is appealing the Court’s
June 20, 2018, order revoking his IFP status. That same day, Plaintiff filed a motion for leave to
appeal IFP. (ECF No. 97). On July 2, 2018, Judge Bryant issued the instant Report and

2
Generally, a prisoner may not bring an action IFP if he “has on three or more prior occasions, while incarcerated or
detained in any facility, brought an action . . . that was dismissed on the grounds that it is frivolous, malicious, or fails
to state a claim upon which relief may be granted.” 28 U.S.C. § 1915(g). An exception to this rule exists if a “three
striker” prisoner brings an action while “under imminent danger of serious physical injury.” Id. This finding is
measured at the time the prisoner files the suit. Ashley v. Dilworth, 147 F.3d 715, 717 (8th Cir. 1998).

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Recommendation, recommending that the Court deny Plaintiff’s motion for leave to appeal IFP.
Specifically, Judge Bryant found that the appeal is frivolous and would not be taken in good faith
because the Court has already determined that Plaintiff’s initial IFP status was improvidently
granted and that Plaintiff is not entitled to proceed IFP. Judge Bryant noted that Plaintiff had an
opportunity to explain his conflicting allegations when objecting to the Report and
Recommendation dated May 14, 2018, and that the Court considered and rejected his objections.
On July 16, 2018, Plaintiff filed objections to the instant Report and Recommendation.
II. DISCUSSION
Pursuant to 28 U.S.C. § 646(b)(1), the Court will conduct a de novo review of all issues
related to Plaintiff’s specific objections.
“An appeal may not be taken in forma pauperis if the trial court certifies in writing that it
is not taken in good faith.” 28 U.S.C. § 1915(a)(3). “Appellate review is not made in good faith
when a litigant seeks review of issues that are frivolous when viewed from an objective standard.”
See Coppedge v. United States, 369 U.S. 438, 445 (1962).
Plaintiff argues that he has satisfied the “imminent danger” exception and should be
allowed to proceed IFP because he alleged that he is being denied treatment for his Crohn’s
Disease, which courts in nonbinding jurisdictions have deemed to be an ongoing, chronic illness.
Plaintiff reiterates his explanation that he alleged in his initial complaint that he did not have
Crohn’s Disease as part of a strategy by which he hoped to cause Defendants to admit that he does,
in fact, have Crohn’s Disease. Plaintiff also argues that he has satisfied the “imminent danger”
exception by alleging that his untreated knee has caused him to suffer two physical injuries, one
of which allegedly occurred in June 2017. 3

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Plaintiff’s objections do not detail the other alleged injury caused by his knee.

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As an initial matter, the Court finds that Plaintiff’s request for leave to appeal IFP (ECF
No. 97) fails because it does not conform with the requirements of the PLRA. A prisoner seeking
leave to appeal IFP must file an affidavit that includes a statement of all assets the prisoner
possesses, the nature of the appeal, and the prisoner’s belief that he is entitled to redress. 28 U.S.C.
§ 1915(a)(1). A valid affidavit is signed, attested before a notary public, and bears a notary’s seal. 4
Jenkins v. Winter, 540 F.3d 742, 747 (8th Cir. 2008). Although Plaintiff’s motion for leave to
appeal IFP is signed and states that he seeks to appeal the Court’s June 20, 2018, order and that he
believes he is entitled to redress, the motion does not include a statement of all of Plaintiff’s assets,
it is not attested before a notary public, and bears no notary’s seal. Thus, the Court finds that
Plaintiff’s motion does not constitute or include a valid affidavit and, as such, his motion fails to
conform to the PLRA’s requirements for requesting leave to proceed IFP. Accordingly, the Court
finds that Plaintiff’s motion should be denied. However, even assuming arguendo that Plaintiff’s
failure to attach an affidavit to his motion is not fatal to his request, the Court finds that the motion
should nonetheless be denied for the following reasons.
As the Court stated in its June 20, 2018, order revoking Plaintiff’s IFP status, the finding
of whether he satisfied the “imminent harm” exception must be measured at the time he filed the
lawsuit. See Ashley, 147 F.3d at 717. The Court has previously found that Plaintiff’s allegations
in his initial complaint failed to satisfy the “imminent harm” exception because he made mutually
exclusive allegations that he both has and does not have Crohn’s Disease. Plaintiff’s initial
complaint raises at least the possibility that he does not have Crohn’s Disease at all and that the
harm he was suffering, caused by unnecessarily taking the medicine dicyclomine, ceased prior to

4

An unsworn declaration may serve as an alternative to a formally attested affidavit if it is signed, dated, and states
“under penalty of perjury” that the information within is true and correct. 28 U.S.C. § 1746. Although Plaintiff’s
motion is signed, it is not dated and does not contain “penalty of perjury” language. Accordingly, the motion cannot
be considered an unsworn declaration.

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the initiation of this action when Defendants stopped providing him dicyclomine. Moreover,
Plaintiff’s initial complaint requested relief in the form of damages from Defendant Correction
Medical Services for misdiagnosing him with Crohn’s Disease.
Plaintiff’s objections concerning his allegations related to Crohn’s Disease are the same as
those he previously presented to the Court, which the Court rejected in its June 20, 2018, order.
Accordingly, the Court finds that Plaintiff has offered no argument or evidence which would cause
the Court to deviate from its previous holding that Plaintiffs’ allegations regarding Crohn’s Disease
fail to satisfy the “imminent harm” exception to allow him to proceed IFP.
Plaintiff also argues that he has satisfied the imminent harm exception by alleging that he
is being denied treatment for his knee. Specifically, Plaintiff states that his knee has caused him
to suffer injuries on two occasions, one of which allegedly occurred in June 2017. This allegation
was not present in Plaintiff’s initial complaint, which was filed on March 13, 2017, and as such,
the Court finds that it cannot suffice to satisfy the “imminent harm” exception. See id. (stating
that an “imminent harm” determination should be measured at the time the prisoner files suit). As
such, the Court is unpersuaded by Plaintiff’s objections regarding his knee and finds that Plaintiff
fails to satisfy the “imminent harm” exception regarding the same.
For the above-discussed reasons, and for the reasons discussed in the Court’s order dated
June 20, 2018 (ECF No. 94), the Court agrees with Judge Bryant’s determination that Plaintiff’s
appeal of the Court’s order revoking his IFP status is frivolous and would not be taken in good
faith. Accordingly, the Court agrees with Judge Bryant’s recommendation that Plaintiff’s motion
for leave to appeal IFP should be denied.
III. CONCLUSION
Upon de novo review of the Report and Recommendation, and for the reasons discussed

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above, the Court finds that Plaintiff’s objections offer neither law nor fact which would cause the
Court to deviate from Judge Bryant’s Report and Recommendation. Accordingly, the Court
hereby overrules Plaintiff’s objections and adopts the Report and Recommendation. (ECF No.
99). Accordingly, Plaintiff’s motion for leave to appeal IFP (ECF No. 97) is hereby DENIED.
See 28 U.S.C. § 1915(a)(3). Plaintiff may renew his motion for leave to appeal IFP with the Court
of Appeals for the Eighth Circuit. See Fed. R. App. P. 24(a).
IT IS SO ORDERED, this 19th day of July, 2018.
/s/ Susan O. Hickey
Susan O. Hickey
United States District Judge

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