Bice v. Birch

Filing 3

MEMORANDUM AND ORDER. IT IS HEREBY ORDERED that plaintiff's motion to proceed in forma pauperis [Doc. #2] is HELD IN ABEYANCE. IT IS FURTHER ORDERED that plaintiff shall submit an amended complaint on a court-provided form no later than thirty ( 30) days from the date of this Memorandum and Order. Plaintiff shall take care to include his signature on his amended complaint. IT IS FURTHER ORDERED that no later than thirty (30) days of the date of this Memorandum and Order, plaintiff must provi de the Court with a certified inmate account statement. IT IS FURTHER ORDERED that upon submission of the amended complaint, the Court shall again review this action pursuant to 28 U.S.C. 1915. IT IS FURTHER ORDERED that the Court shall mail to plaintiff a copy of the Court's Prisoner Civil Rights Complaint form. Amended/Supplemental Pleadings due by 7/1/2016. Signed by District Judge Stephen N. Limbaugh, Jr on 6/1/16. (MRS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
SOUTHEASTERN DIVISION
GARY DEE BICE,
Plaintiff,
v.
CARON BIRCH,
Defendant.

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No. 1:16CV111 ACL

MEMORANDUM AND ORDER
This matter is before the Court upon the motion of Gary Dee Bice, an inmate at Southeast
Correctional Center (“SECC”), for leave to commence this action without payment of the required
filing fee [Doc. #2]. Plaintiff has three “strikes” under 28 U.S.C. § 1915(g). He may only
proceed in forma pauperis, therefore, if his allegations demonstrate that he is in imminent danger
of serious physical injury.
For the reasons stated below, the Court will hold plaintiff’s motion to proceed in forma
pauperis in abeyance at this time. Additionally, the Court will order plaintiff to submit an amended
complaint, along with a prison account statement.
Plaintiff’s Complaint
Plaintiff, an inmate at SECC, brings this action under 42 U.S.C. § 1983 against Dr. Caron
Birch. Plaintiff asserts that he had “sickness without proper medical treatment.” He states that
Dr. Birch “new [sic] the fact of the sickness and didn’t give proper treatment.” He claims that the
sickness caused him dizzy spells and headaches, and he was previously diagnosed with diabetes.
Plaintiff claims he has “never been sent to a outside physician to be checked for sickness,” and he
feels that defendant’s failure to do so is a violation of his constitutional rights.
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In plaintiff’s request for relief, he asks the Court to send him to an outside physician “for
proper medical treatment,” and he seeks monetary damages in an amount in excess of $30,000.
28 U.S.C. § 1915(g) and 1915(e)
The Court has reviewed plaintiff’s prior litigation and finds that he has three dismissals that
qualify as strikes under the statute. See Bice v. Ester, No. 1:10CV93 SNLJ (E.D.Mo.); Bice v.
Commission or Directors of Cape Girardeau City Police Dept., No. 1:11CV27 SNLJ (E.D.Mo.);
and Bice Eastest, 1:13CV181 SNLJ (E.D.Mo.). Therefore, he may only proceed in forma pauperis
if he “is under imminent danger of serious physical injury.” 28 U.S.C. § 1915(g).
“[A]n otherwise ineligible prisoner is only eligible to proceed in forma pauperis if he is in
imminent danger at the time of filing. Allegations that the prisoner has faced imminent danger in
the past are insufficient to trigger this exception to § 1915(g) and authorize the prisoner to pay the
filing fee on the installment plan.” Ashley v Dilworth, 147 F.3d 715, 717 (8th Cir. 1998) (emphasis
in original).
To show imminent danger, a complaint must contain “specific fact allegations of ongoing
serious physical injury, or of a pattern of misconduct evidencing the likelihood of imminent
serious physical injury.” Martin v. Shelton, 319 F.3d 1048, 1050 (8th Cir. 2003). Pursuant to 28
U.S.C. ' 1915(e)(2)(B), the Court must dismiss a complaint filed in forma pauperis if the action is
frivolous, malicious, fails to state a claim upon which relief can be granted, or seeks monetary
relief from a defendant who is immune from such relief.
Discussion
As currently pled, the complaint does not demonstrate imminent serious physical injury.
Plaintiff is complaining about minor illnesses that have occurred in the past, i.e., his past dizzy

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spells and headaches, but not necessarily things that have been a danger to himself at the time of
the filing of the complaint.
The complaint shows only that plaintiff was subjected to past illnesses. As a result, plaintiff
has not shown that he is in imminent danger of serious physical injury, and he may not proceed in
forma pauperis at this time.
However, because of the prior illnesses alleged in the complaint, the Court will not decline
plaintiff’s motion to proceed in forma pauperis and dismiss the case at this time. Instead, the
Court will give plaintiff the opportunity to file an amended complaint and plead the imminent
danger exception to § 1915(g). Plaintiff shall have thirty (30) days from the date of this Order to
file an amended complaint on a court-provided form.1 Plaintiff shall also file a copy of his inmate
account statement at that time.
Plaintiff is warned that the filing of an amended complaint replaces the original complaint,
and claims that are not re-alleged are deemed abandoned. See, e.g., In re Wireless Telephone
Federal Cost Recovery Fees Litigation, 396 F.3d 922, 928 (8th Cir. 2005). If plaintiff fails to file
an amended complaint on a court-provided form within thirty (30) days, the Court will dismiss this
action without prejudice.
Accordingly,
IT IS HEREBY ORDERED that plaintiff=s motion to proceed in forma pauperis [Doc.
#2] is HELD IN ABEYANCE.

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The Court reminds plaintiff to sign the amended complaint, in compliance with Fed.R.Civ.P.11.
His original complaint did not bear his signature.
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IT IS FURTHER ORDERED that plaintiff shall submit an amended complaint on a
court-provided form no later than thirty (30) days from the date of this Memorandum and Order.
Plaintiff shall take care to include his signature on his amended complaint.
IT IS FURTHER ORDERED that no later than thirty (30) days of the date of this
Memorandum and Order, plaintiff must provide the Court with a certified inmate account
statement.
IT IS FURTHER ORDERED that upon submission of the amended complaint, the Court
shall again review this action pursuant to 28 U.S.C. ' 1915.
IT IS FURTHER ORDERED that the Court shall mail to plaintiff a copy of the Court=s
Prisoner Civil Rights Complaint form.
Dated this 1st

day of June, 2016.

STEPHEN N. LIMBAUGH, JR.
UNITED STATES DISTRICT JUDGE

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