Phifer v. Indiana Department of Correction et al

Filing 22

OPINION AND ORDER The court takes the in forma pauperis petition DE 7 under advisement and GRANTS Charles Phifer until July 7, 2016, to file an amended complaint explaining how and why he is in imminent danger of serious physical injury and naming the defendant responsible to provide him with medical treatment that is refusing to do so. He is CAUTIONED that if he does not respond by that deadline, he will be denied leave to proceed in forma pauperis. Signed by Chief Judge Philip P Simon on 6/1/16. cc:pltf(kjp)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
CHARLES PHIFER,
Plaintiff,
vs.
INDIANA DEPARTMENT OF
CORRECTION, et al.,
Defendants.

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CAUSE NO. 3:16-CV-106-PPS-CAN

OPINION AND ORDER
Charles Phifer, a pro se prisoner, seeks leave to proceed in forma pauperis.
However, Phifer is barred from proceeding in forma pauperis by 28 U.S.C. § 1915(g)
because he has on three or more prior occasions filed a complaint or appeal that did not
state a claim for which relief could be granted. This is commonly known as the “Three
Strikes Rule” and it is not news to Phifer that he has struck out. He was notified by the
Circuit Court twice. See Phifer v. Steward, 04-2021 (7th Cir. June 30, 2004) and Phifer v.
Walbash Valley, 04-2089 (7th Cir. July 8, 2004). Indeed, as a result of his abusive
litigation history, he was until recently restricted from filing in the courts of this circuit.
See Phifer v. Wabash Valley Correctional Facility, 04-2089 (7th Cir. Aug. 12, 2004). The
restriction was lifted on February 22, 2016, after he paid the $500.00 sanction. With the
restriction lifted, he is not precluded from filing, but he is nevertheless still struck out.
An inmate with three or more strikes “can use the partial prepayment option in §
1915(b) only if in the future he ‘is under imminent danger of serious physical injury.’”

Abdul-Wadood v. Nathan, 91 F.3d 1023, 1025 (7th Cir. 1996). In order to meet the
imminent danger standard, the threat complained of must be real and proximate.
Ciarpaglini v. Saini, 352 F.3d 328, 330 (7th Cir. 2003). Only “genuine emergencies”
qualify as a basis for circumventing § 1915(g). Lewis v. Sullivan, 279 F.3d 526, 531 (7th
Cir. 2002).
In his amended complaint [DE 21], Phifer clearly alleges that he has suffered
injury as a result of previous denials of medical treatment for which he is seeking
$360,000,000.00. What he has not done is explain how and why he is now in imminent
danger of serious physical injury. Nevertheless, because it appears that he may have
such a claim, I will not merely deny him leave to proceed in forma pauperis. Rather, I
will grant him leave to file an amended complaint answering that question. A copy of
this court’s prisoner complaint form is available in his prison law library.
In the amended complaint, Phifer needs to limit his claims to issues involving
imminent danger of serious physical injury. He needs to explain what medical
condition he now has that is not being treated. He needs to sue only the person
responsible for providing him medical treatment who is not doing so. He needs to
describe the risk of serious physical injury he is facing. He needs to explain what
treatment he is receiving and why he believes it is inadequate. He needs to explain
what treatment he believes he should be getting.
For these reasons, the court takes the in forma pauperis petition [DE 7] under
advisement and GRANTS Charles Phifer until July 7, 2016, to file an amended
complaint explaining how and why he is in imminent danger of serious physical injury

and naming the defendant responsible to provide him with medical treatment that is
refusing to do so. He is CAUTIONED that if he does not respond by that deadline, he
will be denied leave to proceed in forma pauperis.
SO ORDERED.
ENTERED: June 1, 2016
s/ Philip P. Simon
CHIEF JUDGE
UNITED STATES DISTRICT COURT