Higgason v. Tucker et al
Filing
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OPINION AND ORDER denying 28 Motion to Amend. Signed by Judge Philip P Simon on 1/25/18. (Copy mailed to pro se party). (nal)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
JAMES H. HIGGASON, JR.,
Plaintiff,
vs.
ROBERT CARTER,
Defendant.
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CAUSE NO. 3:17-CV-752 PPS
OPINION AND ORDER
James H. Higgason, Jr., a prisoner without a lawyer, filed a motion asking to file
an amended complaint. Although leave to amend should be freely granted under
Federal Rule of Civil Procedure 15(a), “that does not mean it must always be given.”
Hukic v. Aurora Loan Servs., 588 F.3d 420, 432 (7th Cir. 2009). “[C]ourts have broad
discretion to deny leave to amend where there is undue delay, bad faith, dilatory
motive, repeated failure to cure deficiencies, undue prejudice to the defendants, or
where the amendment would be futile.” Id. Here, the proposed amendment would be
futile.
Higgason did not pay the filing fee and he is well aware that U.S.C. § 1915(g)
prevents him from proceeding in forma pauperis except for claims alleging that he is in
imminent danger of serious physical injury. See ECF 1-1, 3, 11, and 17. See also Higgason
v. Corizon, 3:17-CV-496 (N.D. Ind. filed June 22, 2017) and Higgason v. Carter, 3:17-CV751 (N.D. Ind. filed October 2, 2017). 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). Currently, he is proceeding solely
against Commissioner Robert Carter on an injunctive relief claim to replace a dental
crown.
The original complaint also included monetary damage claims against 20 other
defendants. I dismissed them in my screening order and then denied Higgason’s
motion to reconsider because claims arising solely out of past events are not genuine,
proximate emergencies. See ECF 3 and 17. The proposed amended complaint attempts
to add back these 20 defendants and restore these dismissed claims. Allowing such an
amendment would be futile. The proposed amended complaint also seeks to add 5 new
defendants based on past events. These new claims are not meaningfully different than
the claims against the 20 other defendants which I already dismissed. Adding them
would also be futile.
Higgason argues that because he has been assaulted by guards in the past, he is
in imminent danger of assault by any number of unknown guards in the future. To the
extent these allegations might state a claim, it is unrelated to the dental issue in this
case. Therefore they cannot be joined together. See Owens v. Evans, 878 F.3d 559, 566 (7th
Cir. 2017) (Admonishing district courts to dismiss improperly joined claims and
defendants.). Moreover, such a claim would have to be raised in the United States
District Court for the Southern District of Indiana because he is housed at the Pendleton
Correctional Facility which is located within the geographical boundaries of that court.
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For these reasons, the motion to amend (ECF 22) is DENIED.
SO ORDERED on January 25, 2018
/s/ Philip P. Simon
JUDGE
UNITED STATES DISTRICT COURT
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