Scott v. Ore
Filing
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OPINION entered by Chief Judge James E. Shadid on 4/3/2017. IT IS THEREFORE ORDERED: 1) Plaintiff's complaint is dismissed with prejudice for failure to comply with the Court's order in Scott v Goddard, 14-3309, and as malicious and for fai lure to state a claim upon which relief can be granted pursuant to 28 U.S.C. §1915(d). All pending motions are denied as moot. 2) Plaintiff is admonished if he continues to file complaints in violation of this order and the November 2, 2015 Orde r in Scott v Goddard, 14-3309, he will face sanctions.3) If Plaintiff wishes to appeal this dismissal, he must file a notice of appeal with this court within 30 days of the entry of judgment. Fed. R. App. P. 4(a). A motion for leave to appeal in forma pauperis MUST set forth the issues Plaintiff plans to present on appeal. See Fed. R. App. P. 24(a)(1)(C). SEE FULL WRITTEN OPINION. (JS, ilcd)
E-FILED
Monday, 03 April, 2017 03:56:52 PM
Clerk, U.S. District Court, ILCD
UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF ILLINOIS
DENNIS SCOTT,
Plaintiff,
v.
ALICE ORR,
Defendant.
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)
16-CV-4274
OPINION
Plaintiff, proceeding pro se and detained in the Rushville Treatment and
Detention Center, seeks leave to proceed in forma pauperis.[3] The "privilege to
proceed without posting security for costs and fees is reserved to the many truly
impoverished litigants who, within the District Court's sound discretion, would remain
without legal remedy if such privilege were not afforded to them." Brewster v. North Am.
Van Lines, Inc., 461 F.2d 649, 651 (7th Cir. 1972). Additionally, a court must dismiss
cases proceeding in forma pauperis "at any time" if the action is frivolous, malicious, or
fails to state a claim, even if part of the filing fee has been paid. 28 U.S.C. § 1915(d)(2).
Accordingly, this Court grants leave to proceed in forma pauperis only if the complaint
states a federal claim.
In reviewing the complaint, the Court accepts the factual allegations as true,
liberally construing them in Plaintiff's favor. Turley v. Rednour, 729 F.3d 645, 649 (7th
Cir. 2013). However, conclusory statements and labels are insufficient. Enough facts
must be provided to "'state a claim for relief that is plausible on its face.'" Alexander v.
U.S., 721 F.3d 418, 422 (7th Cir. 2013)(quoted cite omitted).
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The Plaintiff has identified one Defendant: Nurse Alice Ore. Although Plaintiff’s
complaint is somewhat difficult to decipher, he clearly focuses on problems with his
dialysis treatment. Plaintiff has filed 35 cases in the Central District of Illinois and 28 of
those cases alleging deliberate indifference to a serious medical condition based on
dissatisfaction with his dialysis treatment or allege some interference with his dialysis
treatment. See Scott v Smith, 13-3157 (del. ind. on March 25, 2013); Scott v Goddard, 143309, November 2, 2015 Order (consolidating 21 cases encompassing alleged conduct
from March 2013 to August 2015 including Scott v. Cobb, No.14-3182; Scott v. Lucas, No.
14-3202; Scott v. Ore, No. 14-3271; Scott v. Taylor, No. 14-CV-3279; Scott v. Goddard, No.
14-CV-3309; Scott v. Ore, No. 14-CV-3310; Scott v. Sullivan, No. 14-CV-3377; Scott v. Ore,
No. 14-CV-3398; Scott v. Sullivan, No. 14-CV-3400; Scott v. Wallace, No. 14-CV-3403; Scott
v. Walker, No. 14-CV-3404; Scott v. Bednarz, No. 14-CV-3405; Scott v. Lochard, No. 15-CV3001; Scott v. Kerr, No. 15-CV-3004; Scott v. Ore, No. 15-CV-3009; Scott v. Cleavinger, No.
15-CV-3017; Scott v. Kulhan, No. 15-CV -3023; Scott v. Lay, No. 15-CV-3116; Scott v. Ore,
No. 15-CV-4068; Scott v. Ore, No. 15-CV-4111; Scott v. Ore, No. 15-CV-4130); Scott v.
Chardonnay Dialysis, No. 15-CV-3080 (duplicative); Scott v. Orr, No. 15-CV-4143 (del.
ind.); Scott v. Orr, No. 15-CV-4149 (del. ind.); Scott v. Thurman, No. 16-CV-4031(del.
ind.); Scott v. Hougas, No. 16-CV-4035 (prevented from receiving dialysis; see also Scott v.
Scott, No. 13-CV-3250 (living conditions); Scott v. Scott, No. 14-CV-3229 (slip and fall);
Scott v. Shelton, No. 14-CV-3297 (retaliation); Scott v. Scott, No. 14-CV-3336 (retaliation);
Scott v. Wilks, No. 15-CV-4121(retaliation); Scott v. Cal, No. 16-CV-4181(dismissed); Scott
v. Morton, No. 16-CV-4182 (slip and fall).
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Plaintiff provides some background in his current complaint concerning his need
of dialysis including issues which occurred in 2011 through 2014. If Plaintiff was
intending to state any claims based on events during this time period, his claim is
barred. First, the claims would be barred by the two year statute of limitations period.
See Wilson v Giesen, 956 F.2d 738, 740 (7th Cir. 1992); Farrell v. McDonough, 966 F.2d 279,
280-82 (7th Cir. 1992). Second, the Court previously consolidated 20 of Plaintiff’s cases
and he was directed to file an amended complaint that “include[d] all allegations
against all defendants for claims involving the denial of dialysis treatment and
retaliation for exercising First Amendment rights for the time period from March 2013
through August of 2015.” Scott v Goddard, 14-3309, November 2, 2015 Order, p. 3.1
However, it appears the focus of Plaintiff’s complaint involves events which
occurred on January 9, 2015. Plaintiff says he was scheduled for dialysis for four and a
half hours on Monday, Wednesday and Friday. However, on January 9, 2015, Plaintiff
was also scheduled for a follow-up appointment after eye surgery. When a Captain
called Defendant Nurse Ore to inquire whether she could begin dialysis earlier,
Defendant Orr said she could not. The nurse stated she had eight patients scheduled
and one patient could not be scheduled with Plaintiff since Plaintiff has Hepatitis B.
Plaintiff disputes the reasons provided by Defendant Nurse Orr. It’s not entirely clear
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Plaintiff was also advised he could still file a lawsuit concerning events which
occurred after August of 2015. Scott v Goddard, 14-3309, December 4, 2015 Text Order.
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from the complaint, but it appears Plaintiff may have gone to the eye doctor and
consequently he had to wait until the following scheduled day for dialysis. Plaintiff
claims the delay could have caused serious injury or death, but he does not allege any
injury took place.
Plaintiff has not clearly articulated a constitutional violation based on either his
disagreement with scheduling or a short delay in receiving dialysis that did not result in
any alleged harm. More important, the Plaintiff has again tried to circumvent the
Court’s previous ruling. Plaintiff was clearly admonished that any claims alleging
Defendants inferred with his right to dialysis which took place between March 2013
through August of 2015 had to be included in his amended complaint in Scott v Goddard,
14-3309. Plaintiff clearly knew about the allegations in the case at bar in January of
2015, long before he filed his amended complaint in Scott v Goddard, 14-3309 on
December 31, 2015. [48] Because Plaintiff violated the Court’s order to include all claims
in his amended complaint, he has forfeited his right to pursue his claim in this case.
The Court further notes Plaintiff has repeatedly ignored the Court’s order in Scott
v Goddard, 14-3309. Plaintiff has attempted to file duplicative lawsuits or lawsuits
including claims which clearly should have been included in his amended complaint.
See Scott v. Thurman, No. 16-CV-4031(July 27, 2016 dismissal order); Scott v. Chardonnay
Dialysis, No. 15-CV-3080 (August 7, 2015 text order); Scott v. Orr, No. 15-CV-4149 (July
27, 2016 dismissal order). The Seventh Circuit has made clear that duplicative litigation
need not be tolerated.
The irrationality of tolerating duplicative litigation in the federal system is
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all the more pronounced where, as here, two federal judges sitting on the
same district court are ... devoting scarce judicial resources to the adjudication of
the same charges by essentially the same plaintiffs against the same defendants.”
Serlin v. Arthur Andersen & Co., 3 F.3d 221, 224 (7th Cir.1993) quoting Ridge Gold
Standard Liquors, Inc. v. Joseph E. Seagram & Sons, Inc., 572 F.Supp. 1210, 1213
(N.D.Ill.1983).
Furthermore, a case proceeding in forma pauperis may be dismissed if the suit is
malicious, and courts have found repetitive filings may meet this standard. See 28
U.S.C. § 1915(d)(2); see also Lindell v. McCallum, 352 F.3d 1107, 1109 (7th Cir.2003) (suit is
“malicious” for purposes of 28 U.S.C. § 1915 if it is intended to harass or is otherwise
abusive of the judicial process); Pittman v. Moore, 980 F.2d 994, 994–95 (5th Cir.1993)
(holding that it is malicious for a plaintiff to file a lawsuit under the in forma pauperis
statute that duplicates allegations of another pending lawsuit); Bussie v. Attorney
General, 2013 WL 3934179, at *2 (W.D.Wis. July 30, 2013)(“Repetitive allegations.of the
sort made by (Plaintiff) are considered malicious and are grounds for dismissal under
the PLRA.”).
Therefore, Plaintiff’s complaint is dismissed with prejudice. In addition, Plaintiff
is admonished he will face sanctions if he continues to file: 1) complaints repeating
claims previous filed; 2) complaints concerning either an interference or denial of his
dialysis between March 2013 and August of 2015; or 3) complaints alleging retaliation
based on events that took place between March of 2013 through August of 2015.
IT IS THEREFORE ORDERED:
1) Plaintiff’s complaint is dismissed with prejudice for failure to comply with the
Court’s order in Scott v Goddard, 14-3309, and as malicious and for failure to state
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a claim upon which relief can be granted pursuant to 28 U.S.C. §1915(d). All
pending motions are denied as moot.
2) Plaintiff is admonished if he continues to file complaints in violation of this
order and the November 2, 2015 Order in Scott v Goddard, 14-3309, he will face
sanctions.
3) If Plaintiff wishes to appeal this dismissal, he must file a notice of appeal with
this court within 30 days of the entry of judgment. Fed. R. App. P. 4(a). A
motion for leave to appeal in forma pauperis MUST set forth the issues Plaintiff
plans to present on appeal. See Fed. R. App. P. 24(a)(1)(C).
Entered this 3rd day of April, 2017.
s/ James E. Shadid
_________________________________________
JAMES E. SHADID
UNITED STATES DISTRICT JUDGE
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