Wilson v. Cauldwell et al

Filing 7

OPINION MEMORANDUM AND ORDER - IT IS HEREBY ORDERED that plaintiff's motion to proceed in forma pauperis (Docket No. 2 ) is HELD IN ABEYANCE. IT IS FURTHER ORDERED that, within twenty-one (21) days from the date of this Memorandum and Order, p laintiff shall submit an amended complaint on a court- provided form. IT IS FURTHER ORDERED that the Clerk of Court shall mail to plaintiff a copy of the Courts Prisoner Civil Rights Complaint form. (Amended/Supplemental Pleadings due by 8/2/2017.) Signed by District Judge Henry Edward Autrey on 7/12/17. (**Instructions and a Copy of the Court's Prisoner Civil Rights Complaint Form attached to this Order and sent to the petitioner.**)(KJS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
REGINALD D. WILSON,
Plaintiff,
v.
UNKNOWN CAULDWELL, et al.,
Defendants.

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No. 4:17CV1456 HEA

OPINION, MEMORANDUM AND ORDER
This matter is before the Court upon the motion of plaintiff Reginald D. Wilson for leave
to proceed in forma pauperis. The motion will be held in abeyance, and plaintiff will be given
the opportunity to submit an amended complaint.
Plaintiff, a prisoner and a frequent filer of lawsuits, is subject to 28 U.S.C. § 1915(g),
which limits a prisoner’s ability to obtain in forma pauperis status if he has filed at least three
actions that have been dismissed as frivolous, malicious, or for failure to state a claim. Section
1915(g) provides in relevant part:
In no event shall a prisoner bring a civil action ... under this section if the prisoner
has, on three or more prior occasions, while incarcerated or detained in any
facility, brought an action ... 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). Section 1915(g) is commonly known as the “three strikes” rule, and it has
withstood constitutional challenges. See Higgins v. Carpenter, 258 F.3d 797, 799 (8th Cir.
2001).
Review of this Court’s files reveals that plaintiff has accumulated more than three strikes.

See Wilson v. City of St. Louis, No. 4:07-CV-854-SNLJ (E.D. Mo. Jun. 25, 2007); Wilson v.
Wilson, No. 4:09-CV-160-MLM (E.D. Mo. Feb. 18, 2009); Wilson v. Hallazzgo, No. 4:09-CV1346-TCM (E.D. Mo. Sept. 4, 2009); Wilson v. State of Mo., No. 4:11-CV-1014-AGF (E.D. Mo.
Jul. 19, 2011). Therefore, the Court may not permit him to proceed in forma pauperis unless he
“is under imminent danger of serious physical injury.” 28 U.S.C. § 1915(g).
In the complaint, plaintiff states he is under imminent danger of serious physical injury
because Cauldwell, a corrections officer, assaulted him on March 8, 2017, and later approached
him and said “My name is Cauldwell, I’m the one that did that to your eye and face.” (Docket
No. 1 at 5). Plaintiff alleges that a doctor and nurse overheard Cauldwell, but ignored him when
he asked them about it. Plaintiff alleges Cauldwell’s wrongdoing was captured on camera.
Plaintiff also states that four cell mates have threatened him, he has been diagnosed with prostate
cancer and needs “immediate transport to a better facility to facilitate urgently needed surgery
and safety from further assaults,” and that he also suffers from headaches, nasal hemorrhaging,
dizziness, pain in various parts of his body, and boils. Id. Plaintiff states that he seeks “redress
from ongoing conditions during this confinement housed with murderers, pedophiles, child
molesters, and rapists as cell mates who threaten” him. Id. at 7. For his prayer for relief,
plaintiff asks the Court to retrieve the video camera recording, prosecute each defendant to the
fullest extent of the law, and compensate him for pain, suffering, and delay in prostate cancer
surgery. He also seeks $2,000,000.00 in monetary damages for injuries and any future problems
the assault and delay have caused.
Earlier this year, plaintiff filed a similar civil action in this Court against different
defendants. Wilson v. Corizon Medical, et al., No. 4:17-cv-1450-PLC (E.D. Mo. Jun. 22, 2017).
There, plaintiff alleged facts regarding the March 8 assault, but he also stated he was being

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denied necessary surgical treatment for prostate cancer. He was granted in forma pauperis status
under the imminent danger exception of § 1915(g), based upon his allegations that he was being
denied cancer treatment. Upon initial review, the Court noted the complaint failed to state a
claim upon which relief could be granted, and permitted plaintiff leave to amend. Plaintiff filed
an amended complaint in which he expressly stated he was in imminent danger of serious
physical injury, but he described and sought relief only for past harm. The Court noted that it
had become clear that the true focus of plaintiff’s complaint was past harm, and that plaintiff had
never actually been in imminent danger of serious physical injury. The Court revoked plaintiff’s
in forma pauperis status and directed him to pay the filing fee. When plaintiff failed to timely do
so, the case was dismissed without prejudice to being refiled as a fully-paid complaint.
In the instant complaint, plaintiff repeatedly uses the words “imminent danger,” and he
mentions prostate cancer. However, he fails to set forth specific facts regarding his disease or his
need for cancer treatment, or any other facts tending to show he is truly in imminent danger of
serious physical injury. Instead, he focuses on Cauldwell’s past actions and seeks to hold him
accountable, and to collect monetary damages and gain transfer to another facility. This, along
with plaintiff’s history of abusing the court system, causes the Court to doubt the credibility of
plaintiff’s allegations of imminent danger. Even so, the Court will not deny 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 to more clearly set forth his claims. Plaintiff is
warned that the filing of an amended complaint replaces the original complaint, and claims that
are not re-alleged are deemed abandoned. 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

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on a court-provided form within twenty-one (21) days of the date of this Memorandum and
Order, the Court will dismiss this case without prejudice.
Accordingly,
IT IS HEREBY ORDERED that plaintiff=s motion to proceed in forma pauperis
(Docket No. 2) is HELD IN ABEYANCE.
IT IS FURTHER ORDERED that, within twenty-one (21) days from the date of this
Memorandum and Order, plaintiff shall submit an amended complaint on a court-provided form.
IT IS FURTHER ORDERED that the Clerk of Court shall mail to plaintiff a copy of
the Court’s Prisoner Civil Rights Complaint form.
Dated this 12th day of July, 2017

___________________________________
HENRY EDWARD AUTREY
UNITED STATES DISTRICT JUDGE

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
DIVISION

(Enter above the full name of the
Plaintiff in this action. Include prison
registration number.)
v.

(Enter above the full name of ALL Defendant(s) in this action. Fed. R. Civ. P. 10(a)
requires that the caption of the complaint
include the names of all the parties. Merely
listing one party and "et al." is insufficient.
Please attach additional sheets if necessary.

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Case No.
(To be assigned by Clerk)

In what capacity are you suing the
defendants?
G
G
G

Official
Individual
Both

PRISONER CIVIL RIGHTS COMPLAINT UNDER 42 U.S.C. § 1983
I.

PLACE OF PRESENT CONFINEMENT:

II.

PREVIOUS CIVIL ACTIONS:
A.

Have you brought any other civil actions in state or federal court dealing with the
same facts involved in this action or otherwise relating to your confinement?
YES

[ ]

NO

[ ]

B.

If your answer to “A” is YES, describe the action(s) in the space below. If there is
more than one action, you must describe the additional action(s) on a separate piece
of paper, using the same format as below.
1.

Parties to previous civil action:
Plaintiff:

Defendant(s):

2.
3.

Docket or case number:

4.

Name of Judge:

5.

Basic claim made:

6.

III.

Court where filed:

Present disposition (Is the case still pending? Is it closed? If closed, was it
appealed?):

GRIEVANCE PROCEDURES:
A.

Is there a prisoner grievance procedure at the institution in which you are
incarcerated?
YES

B.

[ ]

NO

[ ]

Have you presented this grievance system the facts which are at issue in this
complaint?
YES

[ ]

NO

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[ ]

C.

D.

IV.

If your answer to “B” is YES, what steps did you take:

If your answer to “B” is NO, explain why you have not used the grievance system:

PARTIES TO THIS ACTION:
A.

Plaintiff
1.
2.

Plaintiff’s address:

3.

B.

Name of Plaintiff:

Registration number:

Defendant(s)
1.

Name of Defendant:

2.

Defendant’s address:

3.

Defendant’s employer and job title:

4.

Additional Defendant(s) and address(es):

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V.

COUNSEL
A.

Do you have an attorney to represent you in this action?
YES

B.

[ ]

NO

[ ]

If your answer to “A” is NO, have you made an effort to contact an attorney to
represent you in this matter?
YES

[ ]

NO

[ ]

C.

If your answer to “B” is YES, state the name(s) and address(es) of the attorneys you
contacted and the results of those efforts:

D.

If your answer to “B” is NO, explain why you have not made such efforts:

E.

Have you previously been represented by counsel in a civil action in this Court?
YES

F.

[ ]

NO

[ ]

If your answer to “E” is YES, state the attorney’s name and address:

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VI.

Statement of claim (State as briefly as possible the facts of your case. Describe how each
defendant is involved. You must state exactly what each defendant personally did, or failed
to do, which resulted in harm to you. Include also the names of other persons involved,
dates, and places. Be as specific as possible. State your claims in numbered paragraphs. You
may use additional paper if necessary):

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VII.

RELIEF
State briefly and exactly what you want the Court to do for you. Do not make legal
arguments. (Note: If you are a state prisoner and you seek from this Court relief that affects
the length or duration of your imprisonment, your case must be filed on a § 2254 form.)

VIII.

MONEY DAMAGES:
A) Do you claim either actual or punitive monetary damages for the acts alleged in this
complaint?
YES G

NO G

B) If your answer to "A" is YES, state below the amount claimed and the reason or reasons
you believe you are entitled to recover such money damages:

IX.

Do you claim that the wrongs alleged in the complaint are continuing to occur at the present
time?
YES

[ ]

NO

Signature of attorney or pro se Plaintiff

[ ]

Date

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