Washington v. Piper et al
ORDER DISMISSING 1 Complaint filed by Clarence Washington, Denying 2 Application to Proceed Without Prepayment of Fees filed by Clarence Washington, Denying 5 MOTION for Service of Process by United States Marshal filed by Clarence Washington, Denying 3 Application for Appointment of Counsel filed by Clarence Washington. Signed by District Judge John Corbett O'Meara. (WBar)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
CLARENCE R. WASHINGTON, #111260,
CASE NO. 11-10449
HON. JOHN CORBETT O’MEARA
PAUL PIPER, M.D., SHEILA BASKIN, R.N.,
HOPE S. HEEBSH, P.A., CORRECTIONAL
MEDICAL SERVICES, INC., and
PRISON HEALTH CARE SERVICES, INC.,
(1) DISMISSING THE COMPLAINT,
(2) DENYING THE APPLICATION FOR LEAVE TO
PROCEED WITHOUT PREPAYMENT OF THE FEES AND COSTS,
(3) DENYING THE APPLICATION FOR APPOINTMENT OF COUNSEL, AND
(4) DENYING THE MOTION FOR SERVICE OF PROCESS
Plaintiff Clarence R. Washington is a state prisoner currently confined at Ryan
Correctional Facility in Detroit, Michigan. On February 4, 2011. Plaintiff filed a pro se
civil rights complaint under 42 U.S.C. § 1983, along with an application to proceed
without prepayment of the fees and costs for this action and an application for
appointment of counsel. Plaintiff subsequently filed a motion for service of process by
the United States Marshal.
The complaint alleges that, in 2007, while Plaintiff was confined at the Lakeland
Correctional Facility in Coldwater, Michigan, he requested special box-toe footwear.
Defendant Hope S. Heebsh denied Plaintiff’s request because Plaintiff was unable to
pay for the shoes. Plaintiff was subsequently transferred to his current location at the
Ryan Correctional Facility where he asked defendant Paul Piper, M.D., for the special
footwear and for an assessment of four lumps on his testicles. Dr. Piper allegedly
informed Plaintiff that there was nothing he could do other than prescribe Tylenol. The
complaint goes on to say that, on October 6, 2009, after years of pain and suffering,
Plaintiff had an operation to remove the lumps from his testicles. He seeks monetary
and injunctive relief for deliberate indifference to serious medical needs in violation of
his rights under the Eighth and Fourteenth Amendments to the United States
On April 6, 2011, the Court ordered Plaintiff to prepay the filing fee of $350.00 or
to show cause why his complaint should not be dismissed. The Court noted that three
of Plaintiff’s prior complaints were dismissed as frivolous or for failure to state a claim1
and that a prisoner may not file a federal complaint without prepaying the filing fee if
See Washington v. Townsend, et al., No. 90-71653 (E.D. Mich. July 24, 1991)
(order adopting the Magistrate Judge’s Report and Recommendation and dismissing
the complaint with prejudice because Plaintiff’s claims lacked an arguable basis in law
or fact and were frivolous); Washington v. Swift, et al., No. 94-73966 (E.D. Mich. Nov.
16, 1994) (opinion and order dismissing case as frivolous); Washington v. Hutchinson,
et al., No. 08-12787 (E.D. Mich. Sept. 10, 2009, and Dec. 30, 2009) (orders adopting
the magistrate judge’s reports and recommendations that the defendants be dismissed
from the lawsuit). Although some of the defendants in case number 08-12787 were
dismissed without prejudice because Plaintiff failed to exhaust administrative remedies
for his claims against those defendants, two of the defendants were summarily
dismissed under 28 U.S.C. § 1915(e)(2)(B) for failure to state a claim. An additional
claim was dismissed with prejudice under Fed. R. Civ. P. 12(b)(6) for failure to state a
claim under the Eighth Amendment. “[W]here a complaint is dismissed in part without
prejudice for failure to exhaust administrative remedies and in part with prejudice
because ‘it is frivolous, malicious, or fails to state a claim upon which relief may be
granted,’ the dismissal should be counted as a strike under 28 U.S.C. § 1915(b).”
Pointer v. Wilkinson, 502 F.3d 369, 377 (6th Cir. 2007).
three or more of his prior cases were dismissed as frivolous, malicious, or for failure to
state a claim unless the prisoner faces imminent danger of serious physical injury. See
28 U.S.C. § 1915(g).2 The Court warned Plaintiff that, failure to comply with the Court’s
order within twenty-eight days of the date of the order could result in the dismissal of the
More than twenty-eight days have elapsed since the Court issued its order to
show cause in this case, and Plaintiff has not paid the filing fee for this action, nor
shown cause why his complaint should not be dismissed. The complaint, moreover,
fails to allege facts demonstrating that Plaintiff is under imminent danger of serious
physical injury. The growths on his testicles have been removed, and his need for
special box-toe footwear does not rise to the level of “imminent danger of serious
physical injury.” See Zuniga v. University Health System, 71 F. App’x 293, 293-94 (5th
Cir. 2003) (dismissing an appeal as frivolous where the inmate alleged that he would
suffer irreparable harm if he were not given orthopedic shoes).
Accordingly, the application to proceed without prepayment of fees and costs
[dkt. #2] is DENIED, and the complaint [dkt. #1] is DISMISSED without prejudice
This statutory provision reads:
(g) 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).
pursuant to 28 U.S.C. § 1915(g). The application for appointment of counsel [dkt. #3]
and the motion for service of process by the United States Marshal [dkt. #5] are
DENIED as moot.
s/John Corbett O’Meara
United States District Judge
Date: May 31, 2011
I hereby certify that on May 31, 2011 a copy of this order was served upon
Plaintiff at Ryan Correctional Facility by first-class U.S. mail.
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