Lacey v. Szoke et al

Filing 9

ORDER DISMISSING CASE with prejudice pursuant to 28 U.S.C. § 1915A for failing to state a claim upon which relief may be granted, Denying as moot 7 MOTION for Summary Judgment. This dismissal counts as a strike for purposes of 28 U.S.C. § ; 1915(g). Plaintiff is ADVISED that as he has incurred strikes in Lacey v. U.S.A. et al., No. 08-483-JPG (S.D. Ill., filed July 7, 2008) and Lacey v. U.S.A. et al., No. 10-273-GPM (S.D. Ill., filed April 12, 2010), this decision shall constitute hi s third strike. Pursuant to 28 U.S.C. § 1915(g), Plaintiff will hereby be foreclosed from bringing an action in any federal court without prepayment of the filing fee, unless Plaintiff can adequately show that he is under imminent threat of ser ious physical danger. The Court WARNS Plaintiff that should he continue to attempt to bring this claim in future suits, the Court may impose sanctions in an attempt to curb the vexatious filings. Signed by Judge Michael J. Reagan on 6/21/2011. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
WILLIAM P. LACEY, # 09962-029,
Plaintiff,
vs.
DR. SZOKE,
LISA HOLLINGSWORTH,
M. CHASTAIN,
Defendants.

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Case No. 11-cv-0194-MJR

MEMORANDUM AND ORDER
REAGAN, District Judge:
Plaintiff, an inmate currently in the Federal Correctional Institution in Seagoville,
Texas, was at all times relevant to this suit housed in the United States Penitentiary in Marion,
Illinois. Plaintiff brings this action for alleged violations of his constitutional rights by persons
acting under the color of federal authority. See Bivens v. Six Unknown Named Agents, 403 U.S.
388 (1971). This case is now before the Court for a preliminary review of the complaint pursuant
to 28 U.S.C. § 1915A, which provides:
(a) Screening.– The court shall review, before docketing, if feasible or, in any event,
as soon as practicable after docketing, a complaint in a civil action in which a
prisoner seeks redress from a governmental entity or officer or employee of a
governmental entity.
(b) Grounds for Dismissal.– On review, the court shall identify cognizable claims
or dismiss the complaint, or any portion of the complaint, if the complaint–
(1) is frivolous, malicious, or fails to state a claim on which relief
may be granted; or
(2) seeks monetary relief from a defendant who is immune from such
relief.

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28 U.S.C. § 1915A. An action or claim is frivolous if “it lacks an arguable basis either in law or in
fact.” Neitzke v. Williams, 490 U.S. 319, 325 (1989). An action fails to state a claim upon which
relief can be granted if it does not plead “enough facts to state a claim to relief that is plausible on
its face.” Bell Atlantic Corp. v. Twombly, 127 S. Ct. 1955, 1974 (2007). Upon careful review of
the complaint and any supporting exhibits, the Court finds it appropriate to exercise its authority
under § 1915A; this action is subject to summary dismissal.
Facts:
The following facts are gleaned from Plaintiff’s complaint (Doc. 1). Plaintiff suffers
from a number of medical problems, including paralysis on the left side of his body that causes his
left foot to drag. Because of this drag, Plaintiff often falls and receives cuts and bruises on his body.
These injuries were treated by Defendant Szoke while Plaintiff was in Marion. Because of the
difficulties he has walking, Plaintiff asked Defendants Szoke, Chastain, and Hollingsworth for a
wheelchair similar to the one he used before being sent to prison. This request was denied. Plaintiff
then requested a transfer to a medical prison so as to better receive treatment for his various
conditions. This request was also denied. Plaintiff was later transferred to the Federal Correctional
Institution in Seagoville, Texas.
Discussion:
Plaintiff first claims that he was denied use of a wheelchair by Defendants Szoke,
Chastain and Hollingsworth, and that such a denial amounts to deliberate indifference to his medical
needs. This is the third case in which Plaintiff has attempted to bring this claim. See Lacey v. U.S.A.
et al., Case No. 08-cv-0483-JPG (S.D. Ill., filed July 7, 2008); Lacey v. U.S.A. et al., Case No. 10-cv0273-GPM (S.D. Ill., filed April 12, 2010); Lacey v. Szoke, et al., Case No. 11-cv-0194-MJR (S.D.
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Ill., filed March 14, 2011). In the first case, Judge Gilbert dismissed the claim with prejudice for
failing to state a claim upon which relief could be granted, as it was determined that the denial of a
wheelchair did not state a constitutional claim. (Case No. 08-cv-0483, Doc. 11). In the second case,
Judge Murphy informed Plaintiff that his claim was barred by the doctrine of res judicata, i.e. claim
preclusion, due to the decision by Judge Gilbert in the first case. (Case No. 10-cv-0273, Doc. 9).
Plaintiff’s current claim for deliberate indifference relating to the denial of a
wheelchair will likewise be dismissed on the ground of res judicata. As Plaintiff was informed by
Judge Murphy, this doctrine applies where there has been “[1] a final judgment on the merits; [2]
an identity of the issues of the lawsuit; and [3] an identity of the parties or their privies.” Hamdan
v. Gonzales, 425 F.3d 1051, 1059 (7th Cir. 2005). Judge Gilbert issued a final judgment on the
merits of Plaintiff’s deliberate indifference claim when he ordered that the denial of a wheelchair did
not state a constitutional claim. Because that order was with prejudice, Plaintiff was, from that point
onward, foreclosed from bringing the same claim in another suit. However, this has clearly not
stopped Plaintiff from attempting to raise the same claim, as this is the second time the Court has
had to inform Plaintiff that the claim is barred. Consequently, the Court WARNS Plaintiff that
should he continue to attempt to bring this claim in future suits, the Court may impose sanctions in
an attempt to curb the vexatious filings.
Plaintiff next claims that he asked Defendants Szoke, Chastain and Hollingsworth
for a transfer to a medical prison, but Defendants denied this transfer in violation of his
constitutional rights. However, Plaintiff does not have a constitutional right to be freely transferred
from one prison to another at his request. See DeTomaso v. McGinnis, 970 F.2d 211, 212 (7th Cir.
1992). The Constitution does not give prisoners the right to remain in one institution over another,
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and it does not give prisoners the right to demand transfer. See also Meachum v. Fano, 427 U.S.
215, 224 (1976) (the Constitution does not guarantee placement in a particular prison).1
Prisoners do not have liberty or property interests in their prison assignments, so that the transfer,
or failure to transfer, of a prisoner is within the bounds of the constitution. See DeTomaso, 970
F.2d at 212; Montanye v. Haymes, 427 U.S. 236 (1976).
Plaintiff does not have a constitutional right to be transferred to the prison of his
choice. A right is not created simply because Plaintiff requests the transfer for medical reasons.
Where a constitutional right does not exist, there can be no violation, and thus there can be no relief
granted. Plaintiff had no constitutional right to be transferred to a medical prison; thus there was no
constitutional violation by Defendants Szoke, Chastain and Hollingsworth. This claim is dismissed
for failure to state a claim upon which relief can be granted.
Disposition:
IT IS HEREBY ORDERED that Plaintiff’s complaint is DISMISSED, with
prejudice, pursuant to 28 U.S.C. § 1915A for failing to state a claim upon which relief may be
granted. This dismissal counts as a strike for purposes of 28 U.S.C. § 1915(g). Plaintiff is
ADVISED that as he has incurred strikes in Lacey v. U.S.A. et al., No. 08-483-JPG (S.D. Ill., filed
July 7, 2008) and Lacey v. U.S.A. et al., No. 10-273-GPM (S.D. Ill., filed April 12, 2010), this

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The caveat to this rule – involving transfer or assignment to a prison where the
conditions impose “atypical and significant hardship on the inmate in relation to the ordinary
incidents of prison life” – does not apply here, where the transfer decision does not involve
Tamms Correctional Center, the closed maximum security prison (i.e., supermax prison) in
Illinois. See Westefer v. Snyder, Civil No. 00-162-GPM (S.D. Ill. decided July 20,
2010)(citing Sandin v. Conner, 515 U.S. 472 (1995)).
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decision shall constitute his third strike. Pursuant to 28 U.S.C. § 1915(g), Plaintiff will hereby be
foreclosed from bringing an action in any federal court without prepayment of the filing fee, unless
Plaintiff can adequately show that he is under imminent threat of serious physical danger. All
pending motions are DENIED as moot.
IT IS SO ORDERED.
DATED: June 21, 2011
_/s/ MICHAEL J. REAGAN____
MICHAEL J. REAGAN
United States District Judge

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