Smith v. Meyers et al

Filing 54

ORDER: Plaintiff must submit the remainder of the filing fee, $379.94, to the Clerk of Court by June 9, 2022. If Plaintiff does not pay the fee by this deadline, the case will be dismissed for Plaintiff's failure to pay the filing fee. See Fed. R. Civ. P. 41(b). The Court STAYS all matters in this case until Plaintiff has paid the filing fee. Signed by Magistrate Judge Reona J. Daly on 5/10/2022. (nmf)

Case 3:21-cv-01468-RJD Document 54 Filed 05/10/22 Page 1 of 4 Page ID #929

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
JARED M. SMITH,
Plaintiff,
v.
PERCY MYERS, et al.,
Defendants.

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Case No. 21-cv-1468-RJD

ORDER
DALY, Magistrate Judge:
Plaintiff Jared Smith, an inmate in the custody of the Illinois Department of Corrections
(“IDOC”), filed this lawsuit pursuant to 42 U.S.C. § 1983 alleging his constitutional rights were
violated while he was incarcerated at Vienna Correctional Center (“Vienna”).

Plaintiff is

currently incarcerated at Shawnee Correctional Center. Plaintiff alleges he was previously
diagnosed with diminished lung capacity and, in October 2020, he contracted Covid-19. Since
contracting Covid-19, a recent x-ray showed granuloma in the base of Plaintiff’s lungs. Plaintiff
asserts he suffers from chest pains and difficulty breathing, but Dr. Percy Myers, Nurse
Practitioner Sabrina Stevens, and Healthcare Unit Administrator Tammy Stevens have denied his
requests to see a pulmonologist or other specialist, as well as his request for an MRI.
Plaintiff’s complaint was screened pursuant to 28 U.S.C. § 1915A, and he was allowed to
proceed on the following claim:
Count One:

Eighth Amendment deliberate indifferent claim against Percy Meyers,
Sabrina Stevens, Tammy Stevens, and Reynal Caldwell for failing to send
Smith for outside care for his lung condition.

The Warden of Shawnee, Daniel Monti, was added as a defendant only in his official capacity for
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the purpose of carrying out any injunctive relief that may be ordered.
In screening the complaint, District Judge Rosenstengel found that Plaintiff has
accumulated three “strikes” for purposes of Section 1915(g), and cannot proceed IFP unless he is
under imminent danger of serious physical injury. More specifically, Judge Rosenstengel wrote:
[B]ased only on [Plaintiff’s] self-reported condition and care in his Complaint, it
appears, at least at this time, that [Plaintiff] could be facing a genuine emergency.
Thus, the Court will allow [Plaintiff] to proceed in forma pauperis under the
“imminent danger” exception to the “three strikes” rule, at least preliminarily. If
[Plaintiff]’s allegations of imminent physical harm prove to be untrue, then he must
pay the whole filing fee promptly. See Sanders v. Melvin, 873 F.3d 957, 961 (7th
Cir. 2017). And if it turns out that he has lied in an effort to manipulate the Court,
the case may be dismissed with prejudice as a sanction even if [Plaintiff] pays the
full $400 filing fee. Id.
(Doc. 7 at 4-5).
Along with his complaint, Plaintiff filed a motion for emergency injunctive relief, which
the Court construed as a motion for preliminary injunction (see Doc. 3). On March 30, 2022, the
undersigned denied Plaintiff’s motion for a preliminary injunction following a hearing (Doc. 52).
In that Order, the undersigned ordered Plaintiff to show cause as to why his in forma pauperis
status should not be revoked based on the finding there was no indication that Plaintiff’s medical
problems suggest he was in imminent danger of serious physical harm at the time he filed this
lawsuit.
Plaintiff filed a timely response to the Court’s show cause order. In his response, Plaintiff
asserts that at the February 28, 2022 hearing, his claims concerning his lung issues were “proven to
be true,” and, as such, his health condition should be considered an “imminent danger.” In
support of this assertion, Plaintiff recites his testimony from the hearing regarding his complaints
and cites various parts of the Court’s Order denying his preliminary injunction, in which he asserts
the Court erred. Generally, Plaintiff’s response to the show cause order appears to be an attempt
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to re-hear his request for a preliminary injunction.
As mentioned above, Plaintiff was allowed to proceed in this matter preliminarily under
the “imminent danger” exception under 28 U.S.C. § 1915(g). Section 1915(g)’s “imminent
danger” exception is available for “genuine emergencies,” where “time is pressing” and “a threat
… is real and proximate.” Lewis v. Sullivan, 279 F.3d 526, 531 (7th Cir. 2002). As explained by
the court in Ammons v. Hannula, “[i]f the plaintiff succeeds in his attempt for a preliminary
injunction, the imminent danger question will be temporarily resolved pending trial. However,
where the plaintiff fails to show some likelihood of success on the merits, it may call into question
whether the plaintiff was actually in ‘imminent danger of serious physical harm’ to begin with.”
No. 08-cv-608-bbc, 2009 WL 799670, at *3 (W.D. Wis. Mar. 24, 2009).
Here, Plaintiff’s failure to present evidence supporting his claim that he was in imminent
danger at the time he filed his complaint means the undersigned must rely on the facts adduced in
the preliminary injunction proceedings in assessing whether to revoke Plaintiff’s in forma
pauperis status.

It is clear from the undersigned’s Order denying Plaintiff’s motion for

preliminary injunction that Defendants have provided Plaintiff with treatment they believe to be
appropriate using their medical judgment. While the Court recognizes this may not be the
treatment Plaintiff would prefer, the clinical findings have not matched Plaintiff’s complaints.
Thus, the facts indicate that Plaintiff’s allegations of imminent danger are not credible, and
Plaintiff’s in forma pauperis status must be revoked.
Plaintiff must submit the remainder of the filing fee, $379.94, to the Clerk of Court by
June 9, 2022. If Plaintiff does not pay the fee by this deadline, the case will be dismissed for
Plaintiff’s failure to pay the filing fee. See Fed. R. Civ. P. 41(b). The Court STAYS all matters
in this case until Plaintiff has paid the filing fee.
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IT IS SO ORDERED.
DATED: May 10, 2022
s/ Reona J. Daly
Hon. Reona J. Daly
United States Magistrate Judge

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