Watford v. Newbold et al

Filing 96

ORDER DENYING 91 Motion for Leave to Appeal in forma pauperis filed by Marlon L. Watford. Watford is DIRECTED to tender the appellate filing and docketing fee of $505.00 to the Clerk of Court in this District within 30 days of the date of entry of this order. Alternatively, he may reapply for leave to appeal IFP directly with United States Court of Appeals for the Seventh Circuit. ( Action due by 2/26/2020.) Signed by Chief Judge Nancy J. Rosenstengel on 1/27/2020. (mlp)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
MARLON WATFORD,
Plaintiff,
Case No. 3:17-CV-1252-NJR

v.
STEVEN NEWBOLD, JOHN TROST,
DAWN GHAFTHER, JANE DOE,
DR. FUENTES, DR. VEERA KAJA,
WEXFORD, KIMBERLY BUTLER,
JACQUELINE LASHBROOK,
SUSAN KIRK, and WARDEN OF
MENARD CORRECTIONAL CENTER,
Defendants.

MEMORANDUM AND ORDER
ROSENSTENGEL, Chief Judge:
Pending before the Court is Plaintiff Marlon Watford’s Motion for Leave to Appeal
in Forma Pauperis (Doc. 91). The undersigned granted summary judgment to Defendants
on November 27, 2019 (Doc. 83), and entered judgment the same day (Doc. 84). Watford
subsequently filed a Motion to Alter and Amend Judgment (Doc. 85), which was denied
on January 3, 2020 (Doc. 88). Watford now seeks to appeal the Court’s judgment without
full prepayment of the appellate filing fee.
A federal court may permit a party to proceed in forma pauperis (“IFP”) on appeal
provided the party is indigent and the appeal is taken in good faith. 28 U.S.C. § 1915(a)(1)
& (3); FED. R. APP. P. 24(a)(3)(A); see also Walker v. O’Brien, 216 F.3d 626, 630-31 (7th Cir.
2009). An appeal is taken in good faith if it seeks review of an issue that is not clearly
frivolous, meaning that a reasonable person could suppose it to have at least some legal
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merit. Walker, 216 F.3d at 632 (citing Lee v. Clinton, 209 F.3d 1025, 1026 (7th Cir. 2000)). An
inmate who has accumulated three “strikes” under 28 U.S.C. § 1915(g), however, is
prohibited from proceeding IFP in any future civil action or on any appeal unless he is
“under imminent danger of serious physical injury.” 28 U.S.C. § 1915(g); see also Bryant v.
Brin, 621 F. App’x 859, 860 (7th Cir. 2015); Reynolds v. United States, No. 19-CV-01390-JPG,
2020 WL 128683, at *1 (S.D. Ill. Jan. 10, 2020). “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)
Here, Watford admits that he has accumulated three strikes under 28 U.S.C.
§ 1915(g), meaning at least three of his federal lawsuits have been dismissed as frivolous
or malicious, or because they failed to state a claim. See Watford v. Manning, No. 19-CV3868 (N.D. Ill.) (Kendall, J.) (case dismissed with prejudice on July 17, 2019, for failure to
state a claim and as duplicative and malicious); Watford v. Doe, No. 15-CV-9540 (N.D. Ill.)
(Kendall, J.) (case dismissed with prejudice on October 11, 2017, for failure to state a claim
and for failure to disclose litigation history); Watford v. Quinn, No. 14-CV-571 (S.D. Ill.)
(Reagan, J.) (case dismissed with prejudice on August 5, 2014, for failure to comply with
court order, failure to prosecute, and failure to state a claim).
Nevertheless, Watford argues he should be permitted to proceed IFP because he
is in imminent danger of serious physical injury. Watford refers to his cavity at tooth #31
and claims he will suffer irreparable damages to his tooth if he does not receive a filling.
He also claims he is in imminent danger of being subjected to the serious physical injury
of aggravation of his scar tissue, chronic stomach inflammation, and irritable bowel

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syndrome pain due to stress and worry over tooth #31 not receiving a filling.
The Court disagrees that these ailments put Watford in imminent danger of serious
physical injury. As noted in the Court’s summary judgment order, Watford’s dental
records indicate he did not have a cavity in tooth #31, but rather a defect that did not
constitute a serious medical need (Doc. 83). Indeed, on November 3, 2016, Watford was
informed that an x-ray indicated “no radiographic decay” on tooth #31 (Doc. 85 at p. 43).
Even if a cavity does exist on tooth #31, according to Watford’s allegations, that cavity
has been there since March 2014. The Court declines to find that Watford is in imminent
danger of serious physical injury based on a cavity he has had for nearly six years. The
Court further rejects Watford’s allegation that his anxiety over his six-year-old cavity is
causing chronic stomach inflammation and IBS symptoms, such that he is in imminent
danger. See Ciarpaglini, 352 F.3d at 331 (“Courts also deny leave to proceed IFP when a
prisoner’s claims of imminent danger are . . . ridiculous.”).
For these reasons, Watford’s Motion for Leave to Appeal in Forma Pauperis
(Doc. 91) is DENIED. Watford shall tender the appellate filing and docketing fee of
$505.00 to the Clerk of Court in this District within 30 days of the date of entry of this
order. Alternatively, he may reapply for leave to appeal IFP directly with United States
Court of Appeals for the Seventh Circuit.
IT IS SO ORDERED.
DATED: January 27, 2020
____________________________
NANCY J. ROSENSTENGEL
Chief U.S. District Judge

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