Lacy v. Cole et al

Filing 12

MEMORANDUM AND ORDER denying 11 Motion for Reconsideration. IT IS FURTHER ORDERED that this action will be dismissed effective March 1, 2012 unless the plaintiff submits the $350.00 filing fee prior to that date. Signed by Judge William C Griesbach on 02/10/2012. (cc: all counsel, via US mail to Johnny Lacy and William Pollard) (Griesbach, William)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
JOHNNY LACY, JR.,
Plaintiff,
Case No. 11-CV-1084
CHARLES COLE, et al.,
Defendants.

MEMORANDUM AND ORDER

In an order entered January 18, 2012, I denied the plaintiff’s motion for leave to proceed in
forma pauperis because he has accumulated three “strikes” under 29 U.S.C. § 1915(g) and his
complaint did not indicate that he was in imminent danger of serious physical injury. Now before
me is the plaintiff’s motion for reconsideration.
Although the plaintiff brings his motion for reconsideration under Federal Rule of Civil
Procedure 59(e), there has been no judgment entered in this case. Thus, I will consider the
plaintiff’s motion under Federal Rule of Civil Procedure 54, which allows any order adjudicating
fewer than all the claims to be revised at any time before the entry of judgment adjudicating all the
claims and the rights and liabilities of all the parties. Motions to reconsider (or more formally, to
revise) an order under Rule 54(b) are judged by largely the same standards as motions to alter or
amend a judgment under Rule 59(e): to correct manifest errors of law or fact or to present newly
discovered evidence. Rothwell Cotton Co. v. Rosenthal & Co., 827 F.2d 246, 251 (7th Cir. 1987)
(quoting Keene Corp. v. Int’l Fid. Ins. Co., 561 F. Supp. 656, 665-66 (N.D. Ill. 1982), aff’d, 736
F.2d 388 (7th Cir. 1984) (citation and footnote omitted)), amended by, 835 F.2d 710 (7th Cir. 1987).

Compare Moro v. Shell Oil Co., 91 F.3d 872, 876 (7th Cir. 1996) (providing nearly identical
standard for motion under Rule 59(e)).
The plaintiff argues that the Court’s determination that he was not in imminent danger is a
manifest error of law and also asserts that he has newly discovered evidence. He cites to
information he received via “telemed” from a medical professional at the University of Wisconsin
Hospital. She told the plaintiff that he has blockage and an atrial enlargement that is a form of
congestive heart failure. The plaintiff also cites his family history, including a father who died of
a cerebral aneurysm. He argues that kidney and brain cells are killed off by high blood pressure and
that high blood pressure is known throughout the world, especially in Native American and black
communities, as the “silent killer.”
The plaintiff is “100% sure” that he suffers from one form or another of congestive heart
failure. He provides highlights from his medical history dating back to the summer of 1994. In
2005, the plaintiff was diagnosed with fibromyalgia and ultimately had a prescription for Vicodin.
In 2008, the plaintiff was released from administrative confinement and then transferred to the
Waupun Correctional Institution (WCI). Upon his arrival at WCI, the doctor terminated the
plaintiff’s prescriptions for Vicodin, ibuprofen, and acetaminophen. The plaintiff’s blood sugar and
blood pressure increased so much that the plaintiff was put on five medications to lower them.
The plaintiff suggests that the doctor and HSU manager acted with “acrimony” towards him.
He indicates that Dr. Sumnicht told the plaintiff that HSU Manager Belinda Schrubbe told Dr.
Sumnicht that she would not submit a request for the plaintiff to be examined by a cardiologist.
According to the plaintiff, Dr. Sumnicht told him on January 15, 2011, that he tried to sneak in the

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request. Although the plaintiff says this conversation took place on January 15, 2011, the Court
presumes the plaintiff meant January 15, 2012.
The plaintiff argues that there is nothing in his pleadings to suggest that he is not suffering
from congestive heart failure. He again contends that he is in imminent danger of a heart attack or
stroke, and he claims that this is ongoing harm. The plaintiff argues that a cardiologist needs to
determine the extent of the damage to the plaintiff’s heart before the Court can decide if he’s in
imminent danger. Additionally, the plaintiff attempts to include the discontinuation of his
medication in an attempt to meet the imminent danger standard, but he indicates that the
medications were discontinued in 2008 when he was transferred to WCI.
Nothing the plaintiff presents indicates that the Court made a manifest error of law. Nor
does the plaintiff present new evidence of an imminent danger of serious physical injury.
The plaintiff also argues that the Court did not properly screen his complaint. However, this
case is not yet at that stage. In order for a complaint to be screened, a prisoner must either pay the
full filing fee or have a motion for leave to proceed in forma pauperis granted and pay an initial
partial filing fee. I denied the plaintiff’s motion for leave to proceed in forma pauperis after
determining that the plaintiff is not in imminent danger, and the plaintiff has asked the Court to
reconsider that decision.
Section 1915(g) is not used to determine the merits of a claim because “[t]his would result
in a complicated set of rules about what conditions are serious enough, all for a simple statutory
provision governing when a prisoner must pay the filing fee for his claim.” Ciarpaglini, 352 F.3d
at 331. The plaintiff cannot simply say the magic words, “imminent danger,” and transform any
claim into one that circumvents § 1915(g). The alleged imminent danger in the plaintiff’s complaint
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boils down to his disagreement with the medical treatment being provided to him. He has provided
enough detail regarding the treatment he is receiving to show that he is not in imminent danger
because the medical staff is aware of his symptoms and he is receiving medical care for them. It
is evident that the plaintiff just wants a second opinion and/or different treatment from what he is
receiving, which is not a valid claim, let alone a situation presenting imminent danger. See
Ciarpaglini, 352 F.3d at 331 (disagreement with medical professionals about treatment needs does
not state a cognizable Eighth Amendment claim under the deliberate indifference standard of Estelle
v. Gamble, 429 U.S. 97 (1976)).
THEREFORE, IT IS ORDERED that the plaintiff’s motion for reconsideration (ECF No.
11) is DENIED.
IT IS FURTHER ORDERED that this action is DISMISSED, effective Thursday,
March 1, 2012, unless, prior to that date, the plaintiff submits the sum of $350.00 as the full filing
fee in this action to the Clerk of Court.
IT IS FURTHER ORDERED that a copy of this order be sent to the warden of the
institution where the plaintiff is confined.
Dated this

10th

day of February, 2012.

s/ William C. Griesbach
William C. Griesbach
United States District Judge

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