Allen v. Bower et al

Filing 16

ORDER DISMISSING CASE with prejudice, denying 4 MOTION for Leave to Proceed in forma pauperis filed by Roderick T Allen. Plaintiff shall pay the full filing fee of $400.00 for this action within twenty-one (21) days of the date of entry of this Order. Plaintiff is ADVISED that this dismissal shall count as another strike under the provisions of 28 U.S.C. § 1915(g). (Action due by 4/7/2014). Signed by Judge Michael J. Reagan on 3/17/2014. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
RODERICK T. ALLEN, # N-94327,
Plaintiff,
vs.
C/O BOWER,
RICHARD HARRINGTON,
MICHELLE L. GROOVES, DR. FAHIM,
DR. NATHAN CHAPMAN,
PAULA l. POWERS, and
HYDE PARK BANK,
Defendants.

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Case No. 13-cv-931-MJR

MEMORANDUM AND ORDER
REAGAN, District Judge:
This matter is before the Court for review of Plaintiff’s motion for leave to
proceed in forma pauperis (“IFP”) (Doc. 4), filed on September 13, 2013.

Plaintiff has

accumulated three “strikes” because of the dismissal of three of his previously-filed lawsuits for
failure to state a claim upon which relief may be granted or for raising frivolous claims. 1
Therefore, under 28 U.S.C. § 1915(g), he is not allowed to proceed in forma pauperis (“IFP”) in
a new civil action unless he is under imminent danger of serious physical injury.
Procedural History
Plaintiff is currently incarcerated at Menard Correctional Center (“Menard”). He
filed this pro se civil rights action pursuant to 42 U.S.C. § 1983 on September 10, 2013, naming
two Defendants: Correctional Officer Bower and Menard Warden Richard Harrington. In the
Allen v. Chapman, Case No. 11-cv-1130-MJR (S.D. Ill., dismissed Aug. 29, 2012); Allen v. Godinez,
Case No. 12-cv-936-GPM (S.D. Ill., dismissed Oct. 18, 2012); and Allen v. Harrington, Case No. 13-cv725-GPM (S.D. Ill., dismissed Aug. 22, 2013).
1

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original complaint, he sought “emergency relief” in the form of a court order requiring him to be
housed in a single-man cell and transferred to another prison, among other requests. He claimed
that he was in danger of attack by his cellmate (Ray Moore), and feared that gangs and prison
staff are seeking to kill him.
On September 11, 2013, this Court denied without prejudice Plaintiff’s motion for
emergency relief (Doc. 3), finding that his pleadings had not shown him to be in imminent
danger of physical injury. Plaintiff then requested an “extension of time” to file an amended
complaint (Doc. 6), which was granted (Doc. 8). His second request for an extension was
accompanied by a “Petition for Injunction – Refusal of Emergency Injections” (Do. 10). The
Court granted another extension and deferred ruling on the petition for injunctive relief (Doc.
12).
On November 22, 2013, Plaintiff filed his “First Amended Complaint –
Conspiracy to Commit Murder” (Doc. 13). Besides the two original Defendants, Plaintiff added
five more: Michelle L. Grooves (a nurse at Menard), Menard Dr. Fahim, former Menard Dental
Director Dr. Nathan Chapman, Paula L. Powers (Plaintiff’s half-sister), and Hyde Park Bank
(Doc. 13, pp. 1-4).
On December 26, 2013, Plaintiff filed a “Notice of Filing in Other Court” (Doc.
15). Attached was a copy of a “Petition for Affidavit from Estate Witness” which Plaintiff had
filed in his state criminal case (Cook County Case No. 04-CR-19905). That petition requested
the judge who presided over the criminal case to order the Cook County State’s Attorney to
provide Plaintiff with written affidavits from a number of individuals as to the amount and value
of any monetary gifts they had received from Paula L. Powers. These individuals include four of
the Defendants named in the First Amended Complaint, four of the medical professionals who

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evaluated Plaintiff’s fitness to stand trial in his criminal case, 2 and a number of other persons
involved in his criminal prosecution.
The First Amended Complaint (Doc. 13)
Plaintiff’s factual allegations, such as they are, are primarily incorporated into his
listing of the Defendants, and include references to several documents attached as exhibits.
Defendant Bower was responsible for placing Plaintiff’s “Declared Enemy” (apparently a
reference to Ray Moore) into his cell on August 19, 2013 (Doc. 13, p. 1). The attached response
to Plaintiff’s grievance states that by November 5, 2013, Plaintiff had been moved to a single cell
and was no longer housed with Moore (Doc. 13, p. 9).
Defendant Nurse Grooves, on an unspecified date, refused to refer Plaintiff to a
doctor when he sought help for his “sickly appearance and weight loss” which Plaintiff suspected
had been caused by a “Poisoned Tuberculosis Skin Test Injection” he was given on February 26,
2010 (Doc. 13, p. 2). She also falsified Plaintiff’s medical records, stating he submitted to a
test/injection on February 8, 2012, when in fact he had refused. 3 He claims the false records
were used to force him into two situations where he “could be attacked by other inmates.” Id.
He does not elaborate further.
Defendant Fahim, in November 2009, “attempted to convince Plaintiff to go on an
unannounced surgery furlough, which may have resulted” in Plaintiff’s death or loss of the
ability to speak (Doc. 13, p. 3). Again, no other details are included.
Defendant Chapman refused to treat Plaintiff’s gum disease in the spring of 2008.

See People v. Allen, 929 N.E.2d 583, 587-88 (Ill. App. 2010). Plaintiff was convicted of murdering his
sister Debbie Whitebear, and of home invasion.

2

These allegations formed part of the basis of Plaintiff’s claims in Allen v. Godinez, Case No. 12-cv-936GPM, which was dismissed with prejudice on Oct. 18, 2012.

3

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Id. Further, he had cultivated and implanted bacteria in Plaintiff’s teeth and gums, in an attempt
to place Plaintiff in danger of death by poisoning during a tooth extraction procedure. 4 Id.
Defendant Paula Powers is paying unnamed Menard staff (with funds defrauded
from the estate of Plaintiff’s “late father” Carl B. Lewis 5) in an attempt to cause Plaintiff’s death
or great bodily harm, either at the hands of other inmates or through medical or dental
procedures (Doc. 13, p. 4).
Defendant Hyde Park Bank is an institution in Chicago which has “aided and
abetted the efforts of Paula L. Powers to defraud and kill the Plaintiff” (Doc. 13, p. 4). 6 Plaintiff
claims to have had joint bank accounts and other financial assets with the late Carl B. Lewis
which were closed without his approval.
In his “Statement of Claim” section, Plaintiff says:
None of the Defendants has endeared the Plaintiff to them in a manner by which
he would allow them to keep the monetary assets given to them by Paula L.
Powers is suspected to have given to them [sic] from funds defrauded from the
Plaintiff.
(Doc. 13, p. 5).
As relief, Plaintiff asks only for this Court to provide him with (or cause to be
provided) “any and all financial information, and records, available to this Court pertaining to the
Plaintiff previously sued Defendant Chapman over these identical allegations in Allen v. Chapman,
Case No. 11-cv-1130-MJR. The claim against Defendant Chapman was designated as Count 3 in that
action, and was dismissed with prejudice as frivolous on Aug. 29, 2012.
4

During the proceedings (between September 2004 and June 2005) leading up to Plaintiff’s criminal
trial, he maintained that his deceased father, Claude W. Allen, Jr., was a serial killer and was not his real
father. He claimed that his real father was Carl Lewis, from whom he stood to inherit the proceeds of a
real estate trust. Plaintiff insisted that his siblings (including Defendant Paula Powers) conspired to
prevent him from receiving this inheritance. People v. Allen, 929 N.E.2d 583, 586-88 (Ill. App. 2010).
5

Plaintiff previously sued both Paula Powers and Hyde Park Bank in Allen v. Godinez, Case No. 12-cv936-GPM, raising virtually identical claims that Powers was paying Menard staff to harm or kill him.
That case was dismissed with prejudice on October 18, 2012.

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estate of the late Carl B. Lewis” including a copy of the death certificate and will. Id.
Motion for Leave to Proceed IFP (Doc. 4)
Plaintiff seeks leave to proceed IFP in this case without prepayment of the Court’s
usual $400.00 7 filing fee in a civil case. See 28 U.S.C. § 1914(a). Pursuant to 28 U.S.C. § 1915,
a federal court may permit a prisoner who is indigent to bring a “suit, action or proceeding, civil
or criminal,” without prepayment of fees upon presentation of an affidavit stating the prisoner’s
assets together with “the nature of the action . . . and affiant’s belief that the person is entitled to
redress.” 28 U.S.C. § 1915(a)(1).
In this case, Plaintiff’s motion and affidavit are sufficient as to form, but the
Court’s inquiry does not end there. Under 28 U.S.C. § 1915,
In no event shall a prisoner bring a civil action or appeal a judgment in a civil
action or proceeding under this section if the prisoner has, on 3 or more prior
occasions, while incarcerated or detained in any facility, brought an action or
appeal in a court of the United States that was dismissed on the grounds that it is
frivolous, malicious, or fails to state a claim upon which relief may be granted,
unless the prisoner is under imminent danger of serious physical injury.
28 U.S.C. § 1915(g).
As noted earlier, Plaintiff has brought the following actions during his
imprisonment seeking redress from officers or employees of a governmental entity, that have
been dismissed pursuant to 28 U.S.C. § 1915A on the grounds that they were frivolous,
malicious, or failed to state a claim upon which relief may be granted: Allen v. Chapman, Case
No. 11-cv-1130-MJR (S.D. Ill., dismissed Aug. 29, 2012); Allen v. Godinez, Case No. 12-cv936-GPM (S.D. Ill., dismissed Oct. 18, 2012); and Allen v. Harrington, Case No. 13-cv-725-

Effective May 1, 2013, the filing fee for a civil case was increased to $400.00, by the addition of a new
$50.00 administrative fee for filing a civil action, suit, or proceeding in a district court. See Judical
Conference Schedule of Fees - District Court Miscellaneous Fee Schedule, 28 U.S.C. § 1914, No. 14. A
litigant who is granted IFP status, however, is exempt from paying the new $50.00 fee, and will be
assessed a fee of only $350.00.
7

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GPM (S.D. Ill., dismissed Aug. 22, 2013). Because Plaintiff has three “strikes” for purposes of
§ 1915(g), he may not proceed IFP in this case unless he is under imminent danger of
serious physical injury.
The United States Court of Appeals for the Seventh Circuit has explained that
“imminent danger” within the meaning of 28 U.S.C. § 1915(g) requires a “real and proximate”
threat of serious physical injury to a prisoner.

Ciarpaglini v. Saini, 352 F.3d 328, 330

(7th Cir. 2003) (citing Lewis v. Sullivan, 279 F.3d 526, 529 (7th Cir. 2002)). In general, courts
“deny leave to proceed IFP when a prisoner’s claims of imminent danger are conclusory or
ridiculous.” Id. at 331 (citing Heimermann v. Litscher, 337 F.3d 781, 782 (7th Cir. 2003)).
Additionally, “[a]llegations of past harm do not suffice” to show imminent danger; rather, “the
harm must be imminent or occurring at the time the complaint is filed,” and when prisoners
“allege only a past injury that has not recurred, courts deny them leave to proceed IFP.” Id. at
330 (citing Abdul-Wadood v. Nathan, 91 F.3d 1023 (7th Cir. 1996)).
In this case, Plaintiff’s complaint, as well as his motion for leave to proceed IFP,
are devoid of allegations that might lead the Court to conclude that Plaintiff is under imminent
danger of serious physical injury. The claim which precipitated this action, that Defendant
Bower placed him in danger by housing him in a cell with his “enemy” (Ray Moore) became
moot when Plaintiff was moved to a single cell. This was done by November 5, 2013, at the
latest – well before Plaintiff filed the operative (First Amended) complaint.
Plaintiff’s specific allegations against Defendants Grooves, Fahim, and Chapman,
in addition to being conclusory and ridiculous, all involve incidents that occurred between 2008
and February 2012. None of these claims remotely suggest that Plaintiff faced any imminent
danger from them at the time he filed this action. The claim that Nurse Grooves refused to give

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Plaintiff a doctor’s referral does not indicate the date when this occurred – but even if this was a
recent incident, the description of Plaintiff’s condition is too vague and conclusory to overcome
the three-strike bar.
As for Plaintiff’s claims that his half-sister (Defendant Powers) is paying Menard
officials to harm or kill him, this Court previously found these allegations to be “clearly
baseless,” “fanciful, fantastic, and delusional” (Doc. 11 in Allen v. Godinez, Case No. 12-cv936-GPM) (quoting Denton v. Hernandez, 504 U.S. 25, 32 (1992)). Nothing in the instant
complaint or exhibits leads the Court to a different conclusion. In Neitzke v. Williams, 490 U.S.
319 (1989), the Supreme Court noted that when a district court considers an in forma pauperis
motion, it has
the unusual power to pierce the veil of the complaint’s factual allegations and
dismiss those claims whose factual contentions are clearly baseless. . . . [such as]
claims describing fantastic or delusional scenarios, claims with which federal
district judges are all too familiar.
Id. at 327-28. Plaintiff’s allegations that his half-sister, Defendant Powers, has been using
money purportedly gleaned from an inheritance Plaintiff is due from the estate of a person he
claims was his father, to pay Menard staff to kill or injure Plaintiff, draw just such a “fantastic or
delusional scenario.” The Court will not indulge him by giving any credence to these bizarre
claims.
In summary, Plaintiff has failed to show that he was facing imminent danger of
serious physical injury at the time he filed his First Amended Complaint. Further, any claim of
danger he might have faced from his cellmate at the time he filed this action in September 2013
has become moot. The motion for leave to proceed in forma pauperis (IFP) (Doc. 4) is therefore
DENIED.

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Merits Review Pursuant to 28 U.S.C. § 1915A
When leave to proceed IFP is denied, a prisoner-plaintiff is ordinarily allowed to
carry on with an otherwise meritorious action if he pre-pays the full filing fee.

However, the

instant complaint fails to survive the initial merits review required by 28 U.S.C. § 1915A. Under
§ 1915A, the Court is required to dismiss any claims that are frivolous, malicious, fail to state a
claim on which relief may be granted, or seek monetary relief from an immune defendant.
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, 550 U.S. 544, 570 (2007).

The claim of

entitlement to relief must cross “the line between possibility and plausibility.” Id. at 557.
Conversely, a complaint is plausible on its face “when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the defendant is liable for the misconduct
alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Although the Court is obligated to accept
factual allegations as true, see Smith v. Peters, 631 F.3d 418, 419 (7th Cir. 2011), some factual
allegations may be so sketchy or implausible that they fail to provide sufficient notice of a
plaintiff’s claim. Brooks v. Ross, 578 F.3d 574, 581 (7th Cir. 2009). Additionally, Courts
“should not accept as adequate abstract recitations of the elements of a cause of action or
conclusory legal statements.” Id. Applying these standards to the First Amended Complaint,
Plaintiff’s claims must be dismissed.
The claim against Defendant Bower does not indicate that he failed to protect
Plaintiff from harm from inmate Moore. In Farmer v. Brennan, 511 U.S. 825 (1994), the
Supreme Court held that “prison officials have a duty . . . to protect prisoners from violence at

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the hands of other prisoners.” Id. at 833 (internal citations omitted); see also Pinkston v. Madry,
440 F.3d 879, 889 (7th Cir. 2006). However, not every harm caused by another inmate translates
into constitutional liability for the corrections officers responsible for the prisoner’s safety.
Farmer, 511 U.S. at 834. In this case, Plaintiff never claims that he suffered any attack or injury
from Moore, and the two were separated not long after Plaintiff complained about his perceived
threats. Plaintiff thus fails to state a claim against Defendant Bower upon which relief may be
granted.
Likewise, Plaintiff’s general claims that he had lost weight and had a “sickly
appearance” do not suggest that Defendant Grooves was deliberately indifferent to a serious
medical condition when she declined to refer him to a doctor. The Seventh Circuit considers the
following to be indications of a serious medical need: (1) where failure to treat the condition
could “result in further significant injury or the unnecessary and wanton infliction of pain”; (2)
“[e]xistence of an injury that a reasonable doctor or patient would find important and worthy of
comment or treatment”; (3) “presence of a medical condition that significantly affects an
individual’s daily activities”; or (4) “the existence of chronic and substantial pain.” Gutierrez v.
Peters, 111 F.3d 1364, 1373 (7th Cir. 1997). Plaintiff fails to plead any facts which would
indicate he suffered from a serious condition as defined in Gutierrez. The complaint suggests
that Defendant Grooves decided, based on her evaluation of his condition, that Plaintiff did not
need to see a doctor. Her action might have been a mistake, negligence, or even ordinary
malpractice – but none of these will rise to the level of an Eighth Amendment constitutional
violation. See Duckworth v. Ahmad, 532 F.3d 675, 679 (7th Cir. 2008); Ciarpaglini v. Saini, 352
F.3d 328, 331 (7th Cir. 2003) (courts will not take sides in disagreements with medical
personnel’s judgments or techniques).

This allegation thus fails to state a claim against

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Defendant Grooves, and shall be dismissed with prejudice. The other claims (falsification of
medical records) Plaintiff reasserts here had previously been dismissed with prejudice, and shall
remain so.
The claim against Defendant Fahim, over a surgical procedure that apparently
never happened, is completely speculative and devoid of facts. It likewise shall be dismissed
with prejudice.
The remaining claims, against Defendants Chapman, Powers, and Hyde Park
Bank, are another attempt by Plaintiff to revive claims which were dismissed with prejudice in
earlier proceedings. As such, they are entirely frivolous.
Plaintiff fails to include any factual allegations against Defendant Harrington,
thus states no claim against him upon which relief may be granted. See Collins v. Kibort, 143
F.3d 331, 334 (7th Cir. 1998) (“A plaintiff cannot state a claim against a defendant by including
the defendant’s name in the caption.”).
Finally, the Court notes that even if Plaintiff had stated a meritorious claim, the
relief he seeks is not available.

He asks the Court to provide him with financial records

“pertaining to the estate of the late Carl B. Lewis” as well as his death certificate and will. This
material, if it exists, would not be found in the records or under the control of the Federal District
Court for the Southern District of Illinois.
Disposition
For the reasons stated above, IT IS HEREBY ORDERED that this action is
DISMISSED with prejudice. The claims against Defendants Bower and Fahim are dismissed
with prejudice for failure to state a claim upon which relief may be granted. The claim against
Defendant Grooves regarding Plaintiff’s “sickly appearance and weight loss” is dismissed for

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failure to state a claim upon which relief may be granted, and the other claims against her are
dismissed as frivolous. The claims against Defendants Chapman, Powers, and Hyde Park Bank
are dismissed as frivolous. No claim upon which relief may be granted was articulated against
Defendant Harrington. All Defendants are dismissed from the action with prejudice.
Because Plaintiff’s motion to proceed IFP in this action has been denied, it is
further ORDERED that Plaintiff shall pay the full filing fee of $400.00 for this action within
twenty-one (21) days of the date of entry of this Order (on or before April 7, 2014). If Plaintiff
fails to comply with this Order in the time allotted by the Court, a separate order will issue for
the prison Trust Fund Officer to deduct payments from Plaintiff’s trust fund account until the
$400.00 fee is paid in full. Plaintiff incurred the obligation to pay the filing fee for this lawsuit
when it was filed, and the obligation continues regardless of later developments in the lawsuit,
such as denial of leave to proceed IFP or dismissal of the suit. See 28 U.S.C. § 1915(b)(1),
(e)(2); Lucien v. Jockisch, 133 F.3d 464, 467 (7th Cir. 1998).
All other pending motions are DENIED AS MOOT.
Plaintiff is ADVISED that this dismissal shall count as another “strike” under the
provisions of 28 U.S.C. § 1915(g).
The Clerk shall CLOSE THIS CASE and enter judgment accordingly.
If Plaintiff wishes to appeal the dismissal of this case, he may file a notice of
appeal with this Court within thirty days of the entry of judgment. FED. R. APP. P. 4(a)(1)(A). If
Plaintiff does choose to appeal, he will be liable for the $505.00 appellate filing fee irrespective
of the outcome of the appeal. See FED. R. APP. P. 3(e); 28 U.S.C. § 1915(e)(2); Ammons v.
Gerlinger, 547 F.3d 724, 725-26 (7th Cir. 2008); Sloan v. Lesza, 181 F.3d 857, 858-59 (7th Cir.
1999); Lucien v. Jockisch, 133 F.3d 464, 467 (7th Cir. 1998). Moreover, because Plaintiff has

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“struck out” and has not shown that he is in imminent danger of serious physical injury, this
Court will not grant him permission to proceed in forma pauperis on appeal. Finally, if the
appeal is found to be nonmeritorious, Plaintiff may also incur another “strike.” A timely motion
filed pursuant to Federal Rule of Civil Procedure 59(e) may toll the 30-day appeal deadline.
FED. R. APP. P. 4(a)(4).
IT IS SO ORDERED.
DATED: March 17, 2014
s/ MICHAEL J. REAGAN
United States District Judge

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