Duncan v. Fisher

Filing 69

MEMORANDUM OPINION AND ORDER REVOKING IN FORMA PAUPERIS STATUS AND DISMISSING ACTION WITHOUT PREJUDICE: that the Order (ECF No. 10) granting Plaintiff's Application to Proceed in forma pauperis is WITHDRAWN. Plaintiffs in forma pauperis status i s revoked pursuant to 28 U.S.C. § 1915(g). This case is DISMISSED WITHOUT PREJUDICE. IT IS FURTHER ORDERED that the Clerk of Court is directed to reopen this civil action if $400.00 ($350 filing fee plus $50 administrative fee) is paid within 30 days from the entry of this order. IT IS FURTHER ORDERED that all pending motions are terminated. Signed by Magistrate Judge John C. Gargiulo on 9/8/2017 (cwl)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
NORTHERN DIVISION
WENDELL DUNCAN
VERSUS

PLAINTIFF
CIVIL ACTION NO.: 3:16-cv-611-JCG

COMMISSIONER MARSHALL FISHER et
al.

DEFENDANTS

MEMORANDUM OPINION AND ORDER REVOKING IN FORMA
PAUPERIS STATUS AND DISMISSING ACTION WITHOUT PREJUDICE
Plaintiff Wendell Duncan is a postconviction prisoner in the custody of the
Mississippi Department of Corrections (MDOC) who is proceeding pro se. He was
tentatively granted leave to proceed in forma pauperis pending an omnibus hearing.
Plaintiff’s allegations concern the conditions of his confinement, namely the medical
care he has received for diabetes and related complications. Because Plaintiff has,
on not less than three occasions while incarcerated, brought a civil action or appeal
that has been dismissed as frivolous, malicious, or for failure to state a claim,
Plaintiff has accumulated “three strikes” a nd may no longer proceed in forma
pauperis unless he establishes that he is in “imminent danger of serious physical
injury.” 28 U.S.C. § 1915(g). Having considered the pleadings, Plaintiff’s sworn
testimony given at the omnibus hearing, and applicable law, the Court concludes
that Plaintiff’s complaints about the quality of his medical care are insufficient to
meet the threshold requirement of imminent danger of serious physical injury.
Plaintiff’s in forma pauperis status must be revoked. This lawsuit will be dismissed

without prejudice and reopened only if Plaintiff pays the civil filing fee of $400.00
within 30 days of the entry of this Order.
BACKGROUND
Plaintiff is 57 years old. He suffers from diabetes mellitus and related
complications affecting his eyes, kidneys, legs, and feet. When Plaintiff filed his
complaint on August 4, 2016, he was housed at the South Mississippi Correctional
Center (SMCI) in Leakesville, Mississippi. He was transferred to the Mississippi
State Penitentiary (Parchman) in Parchman, Mississippi, on August 4, 2016.
Plaintiff initially alleged that he needed orthopedic shoes. He has since
received the shoes. Plaintiff initially requested a special diet tray. He now receives a
special diet tray. Plaintiff asserted that he needed glasses. He has received glasses.
Plaintiff desires certain treatment for blisters and corns, his kidneys, and his
eyes. He has been examined by Dr. Ronald Woodall, who prescribed the medicine
Metformin. Although Plaintiff has also been seen by other medical doctors, nurses
and nurse practitioners, he wants to be seen exclusively by medical doctors. He
specifically wants to see a neurologist. Plaintiff maintains that he has had daily
pain in his leg for two years. He fears that amputation of his leg or foot will be
required.
DISCUSSION
A prisoner may not proceed in forma pauperis in a civil action or an appeal of
a judgment in a civil action if the prisoner has, on three or more prior occasions,
while incarcerated, brought an action or appeal that was dismissed as frivolous,

malicious, or for failure to state a claim. 28 U.S.C. §1915(g). Plaintiff does not
dispute that he has accumulated three strikes under § 1915(g) but contends that he
meets the exception under § 1915(g) because he is in imminent danger of serious
physical injury.1
Plaintiff’s allegations indicate that he suffers from a variety of chronic
medical conditions for which he is receiving treatment. Although Plaintiff disagrees
with the course of treatment, Plaintiff’s contentions do not suggest that he is
currently under imminent danger of serious physical injury or that he was in
danger at the time he filed his Complaint and moved to proceed in forma pauperis.
See Edmond v. Tex. Dep’t of Corrs., 161 F.3d 8 (5th Cir. 1998).
Plaintiff’s use of the phrase “imminent danger” is no more than an effort to
craft the pleadings in a manner designed to circumvent the § 1915(g) bar. Plaintiff
has filed roughly fifty civil actions in the United States District Courts for the
Northern and Southern Districts of Mississippi. His attempts to circumvent the
three-strikes bar have been repeatedly rejected. In many of those cases, he asserted
claims similar to those he asserts here:


Duncan v. Bearry, No. 3:06-cv-690-DPJ-JCS (Plaintiff’s claim that he
needed orthopedic shoes found not to meet imminent danger of
physical injury exception; monetary sanctions against Plaintiff
imposed);

See Duncan v. Puckett, No. 96-60096 (5th Cir. May 27, 1996) (affirming dismissal
of civil rights action as frivolous); Duncan v. Pryor, No. 95-60766 (5th Cir. Apr. 17,
1996) (same); Duncan v. Buck, No. 4:96-cv-2 (N.D. Miss. Jan. 12, 1996) (dismissal of
suit as frivolous); Duncan v. Dawson, No. 4:96-cv-190-GHD (barring Plaintiff from
filing a new action without paying the filing fee or demonstrating imminent
danger).
1



Duncan v. Hillman, No. 2:07-cv-145-KS-MTP (Plaintiff’s complaints
regarding housing and medical treatment found not to meet imminent
danger of physical injury exception);



Duncan v. McLeod, No. 4:08-mc-1-JAD (denying filing based on
Plaintiff’s owing monetary sanctions from Bearry)



Duncan v. Caskey, No. 4:09-cv-177-HTW-LRA (Plaintiff’s complaints
regarding loss of legal materials and housing assignment found not to
meet the imminent danger of physical injury exception);



Duncan v. Carmichael, No. 4:10-cv-167-LRA, aff’d, No. 11-60719, 475
F. App’x 535 (5th Cir. 2012) (Plaintiff’s complaints regarding glaucoma
treatment, housing assignment, and grooming found not to meet the
imminent danger of physical injury exception);



Duncan v. S. Corr. Inst., No. 5:12-cv-34-DCB-JMR (Plaintiff’s claims of
imminent danger due to his housing assignment, lack of recreation,
meals, and lost legal papers found not to meet the imminent danger of
physical injury exception);



Duncan v. Crawford, No. 3:15-cv-473-DPJ-FKB (Plaintiff’s complaint
about treatment for cataracts found not to meet the imminent danger
of physical injury exception);



Duncan v. Shivers, No. 1:16-cv-50-HSO-JCG (Plaintiff’s complaint
about treatment for cataracts, housing assignment, and grooming
found not to meet the imminent danger of physical injury exception);

Plaintiff cannot proceed further in this lawsuit without first paying the full
civil filing fee of $400 ($350 filing fee plus $50 administrative fee).
CONCLUSION
IT IS THEREFORE ORDERED that the Order (ECF No. 10) granting
Plaintiff’s Application to Proceed in forma pauperis is WITHDRAWN. Plaintiff’s in
forma pauperis status is revoked pursuant to 28 U.S.C. § 1915(g). This case is
DISMISSED WITHOUT PREJUDICE.

IT IS FURTHER ORDERED that the Clerk of Court is directed to reopen
this civil action if $400.00 ($350 filing fee plus $50 administrative fee) is paid within
30 days from the entry of this order.
IT IS FURTHER ORDERED that all pending motions are terminated.
SO ORDERED, this the 8th day of September, 2017.
s/

John C. Gargiulo

JOHN C. GARGIULO
UNITED STATES MAGISTRATE JUDGE