Jones-El v. Stange et al
Filing
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MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that the Court's previous March 8, 2016 orders granting plaintiff leave to proceed in forma pauperis and assessing a $1.50 initial partial filing fee are VACATED; plaintiff will not be allowed to proceed in forma pauperis in this action. IT IS FURTHER ORDERED that this action is DISMISSED, without prejudice, pursuant to 28 U.S.C. 1915(g). IT IS FURTHER ORDERED that all remaining pending motions are DENIED as moot. A separate Order of Dismissal shall accompany this Memorandum and Order. Signed by District Judge Stephen N. Limbaugh, Jr on 3/31/16. (CSG)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
SOUTHEASTERN DIVISION
EUGENE K. JONES-EL,
Plaintiff,
v.
BILL STANGE, et al.,
Defendants.
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No. 1:16-CV-5-SNLJ
MEMORANDUM AND ORDER
This matter is before the Court on the filing of plaintiff=s amended
complaint [Doc. 8]. 1
Although plaintiff, who is a prisoner, was previously
granted leave to proceed in forma pauperis, it now appears, after having reviewed
the amended complaint and plaintiff’s numerous previous filings with this Court,
that plaintiff has filed at least three cases that were dismissed as frivolous,
malicious, or for failure to state a claim.2 Under 28 U.S.C. ' 1915(g), therefore,
plaintiff may not proceed in forma pauperis unless he Ais under imminent danger of
serious physical injury.@
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The amended complaint was filed pursuant to the Court’s March 8, 2016
Memorandum and Order [Doc. 7].
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See Jones v. Joyce, No. 4:10-CV-369-FRB (E.D. Mo.); Jones v. Joyce, No.
4:09-CV-1972-CEJ (E.D. Mo.); Jones v. Sayle, No. 4:98-CV-17-ERW (E.D. Mo.).
The Amended Complaint
Plaintiff, an inmate at the Southeast Correctional Center (“SECC”), seeks
monetary, declaratory, and injunctive relief in this 42 U.S.C. § 1983 action for
alleged constitutional violations he sustained at SECC. There are forty-seven
named defendants, and plaintiff is suing them in both their individual and official
capacities.
Plaintiff states that he has some sort of bowel problem that results in
incontinence. He further states that when inmates are outside during recreation,
they may not enter the prison facility to use the bathroom.
Liberally construing
the amended complaint, plaintiff is complaining that all defendants are violating
his constitutional rights by not providing him a toilet, or “alternative means,”
during his one-hour “small yard recreation.” More specifically, he states, “from
September 2014 to this very day of March 18, 2016, [defendants have] placed me
in imminent danger of serious physical harm by approving and condoning the
enactment of a procedural rule that denies me the use of a toilet and/or an
alternative means by which the toilet could be used inside the one hour time period
leading up to the next scheduled movement during the small yard recreation
periods,” which results in plaintiff defecating and urinating on himself.
Plaintiff
states that he suffers a myriad of physical and emotional injuries due to the
incontinence episodes during recreation. Plaintiff states that he is being “forced
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to choose between [his] small yard recreation period just so [he] could have access
to a toilet.” In addition, plaintiff summarily complains that he is “constantly
being denied the issuance of a lay-in order, medical or otherwise.”
Discussion
After reviewing the amended complaint, the Court finds no indication that
plaintiff is in imminent danger at SECC due to defendants’ alleged conduct and/or
policies.
Although plaintiff summarily employs the terminology, “imminent
danger,” the facts set forth in in the amended complaint simply do not satisfy the
imminent danger requirement of ' 1915(g). See Martin v. Shelton, 319 F.3d
1048, 1050 (8th Cir. 2003).
It is unclear how often plaintiff engages in “small
yard recreation,” but when it is available, he apparently continues to choose to
engage in the one-hour recreation despite his alleged incontinence issue and
resulting adverse physical and emotional consequences.
Moreover, it seems
incongruous that plaintiff is suing forty-seven defendants for failing to give him a
lay-in order when he is also complaining that he wants to go out to recreation.
As
a result, the Court will vacate its previous March 8, 2016 orders granting plaintiff
leave to proceed in forma pauperis and assessing a $1.50 initial partial filing fee
and will dismiss this action without prejudice to refiling as a fully-paid complaint.
Accordingly,
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IT IS HEREBY ORDERED that the Court’s previous March 8, 2016
orders granting plaintiff leave to proceed in forma pauperis and assessing a $1.50
initial partial filing fee are VACATED; plaintiff will not be allowed to proceed in
forma pauperis in this action.
IT IS FURTHER ORDERED that this action is DISMISSED, without
prejudice, pursuant to 28 U.S.C. ' 1915(g).
IT IS FURTHER ORDERED that all remaining pending motions are
DENIED as moot.
A separate Order of Dismissal shall accompany this Memorandum and
Order.
Dated this 31st day of March, 2016.
UNITED STATES DISTRICT JUDGE
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