Almond v. Glinski et al

Filing 20

DECISION AND ORDER signed by Judge Pamela Pepper on 10/26/2015 DENYING 4 Motion for Leave to Proceed in forma pauperis; SCREENING 1 Complaint and DISMISSING case; DENYING AS MOOT 11 Motion for Order, 12 Motion for Preliminary Injunction, 15 Motion for Order, 16 Motion for Order, 17 Motion for Order, 18 Motion for Order, and 19 Motion for Order. (cc: all counsel; by US Mail to Plaintiff) (pwm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
______________________________________________________________________________
DWAYNE ALMOND,
Plaintiff,
v.

Case No. 15-cv-365-pp

JOHN J. GLINSKI, REBECCA ANN PAULSON,
WILLIAM POLLARD, DR. PAUL SUMNICHT,
BELINDA SCHRUBBE, DR. MANLOVE,
AMY SCHRAUFNGED, SANDRA JACKSON,
ANGLIA KROLL, DR. DAVID BURNETT,
DR. SCOTT HOFTIEZER, JIM GREER,
MARY MUSE, CHARLES COLE,
JESSE JONES, and DONNA LARSON,
Defendants.
______________________________________________________________________________
DECISION AND ORDER DENYING PLAINTIFF’S MOTION FOR LEAVE TO
PROCEED IN FORMA PAUPERIS (DKT. NO. 4), SCREENING COMPLAINT
(DKT. NO. 1), DISMISSING CASE, AND DENYING AS MOOT PLAINTIFF’S
MOTION FOR SHOWING OF “PREJUDICES” (DKT. NO. 11); MOTION FOR
PRELIMINARY INJUNCTION AND BRIEF (DKT. NO. 12); MOTION FOR
EMERGENCY ANSWER OR ORDER (DKT. NO. 15); SECOND MOTION FOR
EMERGENCY ANSWER OR ORDER (DKT. NO. 16); THIRD MOTION FOR
EMERGENCY ANSWER OR ORDER (DKT. NO. 17); FOURTH MOTION FOR
EMERGENCY ANSWER OR ORDER (DKT. NO. 18) AND FIFTH MOTION FOR
EMERGENCY ANSWER OR ORDER (DKT. NO. 19)
______________________________________________________________________________
The plaintiff is a pro se prisoner. He has filed a complaint under 42
U.S.C. §1983 (Dkt. No. 1), an application for leave to proceed in forma pauperis
(Dkt. No. 4), and several other motions.
Application to proceed in forma pauperis
Under the Prison Litigation Reform Act (PLRA) of 1996, a prisoner may
not bring a civil action or appeal a civil judgment in forma pauperis,
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If the prisoner has, on 3 or more prior occasions, while
incarcerated or detained in any facility, brought an action or
appeal 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). When determining whether a prisoner has acquired three
“strikes” under §1915(g), the court must consider prisoner actions dismissed
on any of the three enumerated grounds both before and after enactment of the
PLRA. Evans v. Ill. Dep’t of Corr., 150 F.3d 810, 811 (7th Cir. 1998).
The plaintiff has accumulated several “strikes”: (1) Almond v. Wisconsin,
et al., Case No. 06-C-447-C (W.D. Wis.); (2) Almond v. Wisconsin, Case No. 06C-448-C (W.D. Wis.); (3) Almond v. Wisconsin, Case No. 06-C-449-C (W.D.
Wis); and Almond v. Glinski, Case No. 14-CV-1336-pp (E.D. Wis.). Despite this
fact, the plaintiff states in the caption of his complaint and in his application
for leave to proceed in forma pauperis that he is in imminent danger of serious
physical injury, implying that his case constitutes an exception to the “three
strikes” rule.
In order to meet the imminent danger requirement of 28 U.S.C. §1915(g),
a plaintiff must allege a physical injury that is imminent or occurring at the
time the complaint is filed, and the threat or prison condition causing the
physical injury must be real and proximate. Ciarpaglini v. Saini, 352 F.3d 328,
330 (7th Cir. 2003) (citing Lewis v. Sullivan, 279 F.3d 526, 529 (7th Cir. 2002)
and Heimermann v. Litscher, 337 F.3d 781 (7th Cir. 2003)). Courts deny leave
to proceed in forma pauperis under §1915(g) when a prisoner alleges only a
past injury that has not recurred. See Ciarpaglini, 352 F.3d at 330 (citations
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omitted). In addition, courts deny leave to proceed in forma pauperis when a
prisoner’s claims of imminent danger are “conclusory or ridiculous.” Id. (citing
Heimermann v. Litscher, 337 F.3d at 782 (contesting one’s conviction and
complaining of inadequate protection two years previously is not imminent
danger); Martin v. Shelton, 319 F.3d 1048, 1050 (8th Cir. 2003) (working in
inclement weather twice is not imminent danger); White v. Colorado, 157 F.3d
1226, 1231 (10th Cir. 1998) (“vague and conclusory” assertions of withheld
medical treatment when prisoner was seen over 100 times by physician is not
imminent danger)). Courts should not use §1915(g) to determine the merits of a
claim, however, 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 alleges that, since Dr. Sumnicht diagnosed him with a small
external hemorrhoid on February 7, 2012, the defendants have failed to treat
that condition. Dkt. No. 1 at 2, 4. He also alleges that the defendants have not
treated his stomach ailments and failed to provide him with a bottom bunk
bed. Id. He alleges that these facts demonstrate that he is in imminent danger
of serious physical injury. But, since the date he filed his complaint, the
plaintiff has filed several other pleadings which directly contradict his claim
that his conditions have gone untreated.
On August 28, 2015, the plaintiff filed a “motion for preliminary
injunction relief/of emergency medical serious needed ‘surgeries’ for his left[]
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untreated, on-gone. . . (“specific”) diagnosis small external bleeding
hemorrhoid/*also, newly blood tests results showed Almond #238839-A is
suffering from chronic arthritis in is whole body and his abdomen is fighting
against itself.” Dkt No. 12 at 1. In this motion, the plaintiff reiterates his
complaint allegations. But he also alleges that x-rays show that his
hemorrhoid is the size of a tennis ball, citing to Exhibit 1. Dkt. No. 12 at 6.
Exhibit 1 is a one-page copy of what appears to be four x-rays taken on June 4,
2012, one of which the plaintiff’s note allege is an x-ray of a hemorrhoid. Dkt.
No 12-1 at 24. This motion also alleges that after the plaintiff’s March 23, 2015
Pollard Memorandum, medical staff performed a rectal exam on him, and that
he also received emergency blood tests. These blood tests allegedly showed that
the plaintiff suffers from “chronic arthritis,” and that “his whole body and his
abdomen is fighting against itself.” Dkt. No. 12 at 15.
On September 8, 2015, the plaintiff filed “Motion for emergency answer
or order . . . to his ‘motion for preliminary injunction and brief for relief, for
serious needed outsided [sic] hospital medical adequate treatment of
care/surgery?” Dkt. No. 15. In this filing, the plaintiff asserts that his newly
discovered exculpatory evidence is his blood tests (taken after March 23, 2015),
which show that he has chronic arthritis and that his abdomen is fighting
against itself. Dkt. No. 15 at 2.
In the plaintiff’s September 15, 2015 second motion for emergency
answer or order, the plaintiff alleges that he saw Nurse Ann on September 9,
2015, regarding his Health Service Request about his chronic arthritis and
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stomach ailments, and because his hemorrhoid was bleeding again. Dkt. No.
16 at 4. (He indicates that despite this visit, his conditions were left untreated.
Id.)
On September 23, 2015, the plaintiff filed his third motion for emergency
answer or order. Dkt. No. 17. In this motion, he states that on September 14,
2015, he was taken offsite to Agnesian Emergency Health Care for his medical
issues. Id. at 3. He states that he was “interview[ed] or treated” on that date—
hospital took x-rays of his neck, back and abdomen. Id.
On October 14, 2015, the plaintiff filed his fourth motion for an
emergency answer or order. Dkt. No. 18. In this motion, he indicates that on
October 6, 2015, he referred his concerns about not being treated to the
Federal Bureau of Investigation. Id. at 3. Finally, on October 16, 2015, the
plaintiff filed a fifth motion for answer or order, reiterating his previous legal
arguments. Dkt. No. 19.
The first three of these motions reveal that the plaintiff has, despite his
allegations to the contrary, been receiving medical treatment. He has had xrays. He has had blood tests. He is not, according to his own filings, simply
being ignored.
Based on the fact that the plaintiff’s own filings demonstrate that he is
receiving medical attention and treatment, the court finds that the plaintiff is
not in imminent danger of serious physical injury, and thus does not qualify as
an exception to the “three strikes” rule.

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Screening of the Complaint
The allegations that the plaintiff raises in this case are the same
allegations he raised in Almond v. Glinski, Case No. 14-cv-1336-pp (E.D. Wis.),
which the court dismissed on January 26, 2015 for failure to state a claim and
as frivolous.
The following quote from the court’s order dismissing case no. 14-cv1336 provides helpful background and context regarding the plaintiff’s
allegations in this case:
Mr. Almond argues that he is under imminent danger of
serious physical injury because on February 7, 2012, Dr.
Sumnicht diagnosed him with a small external hemorrhoid, which
since has gone untreated. Mr. Almond also refers to stomach
ailments, arguing that the defendants failed to provide him with a
bottom bunk bed. He further alleges that Judge Barbara B. Crabb,
who previously dismissed Almond v. Pollard, Case No. 12-CV-259BBC (W.D. Wis.) and Almond v. Pollard, Case No. 14-CV-5-BBC
(W.D. Wis.), is prejudiced and biased.
In Case No. 12-CV-259, Judge Crabb granted the
defendants’ motion to revoke Mr. Almond’s in forma pauperis
status after determining that Mr. Almond was not in imminent
danger of serious physical injury. See Almond v. Pollard, 2013 WL
4591849, at *3 (W.D. Wis. Aug. 28, 2013); see also Taylor v.
Watkins, 623 F.3d 483, 485-86 (7th Cir. 2010) (“If a defendant
contests a plaintiff’s imminent danger allegations, . . . the court
must determine the allegations’ credibility, either by relying on
affidavits or depositions or by holding a hearing.”). Judge Crabb
also imposed a sanction on Mr. Almond:
This case is just the latest in a line of cases in
this court and the Eastern District of Wisconsin
having to do with plaintiff’s perceived ongoing back
and abdominal problems. Almond v. Lutsey, 11–cv–
333–bbc (W.D. Wis. Dec. 15, 2011) (case dismissed for
plaintiff’s failure to exhaust administrative remedies);
Almond v. Pollard, 09-cv-335-bbc (W.D. Wis. Mar. 1,
2011) (granting summary judgment to defendants on
claims regarding back ailments); Almond v. Pollard,
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08-cv-546 (E.D. Wis. Mar. 26, 2009) (granting
summary judgment to defendants on claims regarding
back ailments); Almond v. Lesatz, 06-cv-446-bbc (W.D.
Wis. Oct. 29, 2006) (case dismissed for plaintiff’s
failure to exhaust administrative remedies). Plaintiff
has not been successful in any of these cases. In
addition to the numerous exams plaintiff has received
at the prison, the medical records provided by the
parties in these cases show that plaintiff has been
seen off-site for xrays at least twice and for the
colonoscopy discussed above, and no medical
problems with plaintiff’s back or bowels have been
found. Yet he continues to initiate “imminent danger”
litigation that does not reveal any constitutional
violations by prison staff.
As a means of avoiding additional waste of court
resources
responding
to
frivolous
complaints
containing only the magic words “imminent danger”
rather than conditions truly passing muster under §
1915(g), the court will bar plaintiff from proceeding in
forma pauperis on future “imminent danger” claims
relating to his perceived back and abdomen ailments
unless plaintiff’s complaint is accompanied by records
showing that plaintiff has been diagnosed with new
ailments and is failing to receive treatment for them.
Future “imminent danger” lawsuits filed by plaintiff
regarding back and abdomen problems that do not
include such documentation will be deemed
automatically dismissed after 30 days unless the court
orders otherwise. Alexander v. United States, 121 F.3d
312, 315 (7th Cir. 1997).
Almond v. Pollard, No. 12-CV-259-BBC, 2013 WL 4591849, at 32 *4 (W.D. Wis. Aug. 28, 2013); reconsideration denied, No. 12-CV259-BBC, 2013 WL 5745664 (W.D. Wis. Oct. 23, 2013).
In Case No. 14-CV-5 (W.D. Wis.), Mr. Almond had raised the
same claim that he is raising in this case – that is, that the
defendants failed to treat his small bleeding hemorrhoid that Dr.
Sumnicht diagnosed on February 7, 2012. After providing Almond
with an opportunity to file an amended complaint more fully
describing the seriousness of his medical condition, Judge Crabb
determined that he did not fall under § 1915(g)’s imminent danger
exception, and she dismissed the claim for failure to state a claim.
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Almond v. Pollard, Case No. 14-CV-5-BBC, ECF No. 13, at 2-3
(W.D. Wis. April 22, 2014).
In this case, Almond names five additional defendants –
Wisconsin Assistant Attorneys General John J. Glinski and
Rebecca Ann Paulson; Dr. Manlove, described as “John Doe of
WCI”; Charles Cole; and Registered Nurse Donna Larson – whom
he did not sue in Case No. 14-CV-5. He does not name Jim Greer,
who he named in the prior case. Other than these differences, his
allegations in the instant complaint are similar to those in the
previous case. This court agrees with Judge Crabb’s determination
that Mr. Almond’s allegations do not pass muster under either the
imminent danger standard or the Eighth Amendment “deliberate
indifference to a serious medical need” standard. Moreover, “[a]
complaint that seeks to relitigate previously dismissed claims is
frivolous within the meaning of § 1915(d).” See Cooper v. Delo, 997
F.2d 376, 377 (8th Cir. 1993); Pittman v. Moore, 980 F.2d 994,
995 (5th Cir. 1993); Crisafi v. Holland, 655 F.2d 1305, 1309 (D.C.
Cir. 1981); Philips v. Carey, 638 F.2d 207, 209 (10th Cir.), cert.
denied, 450 U.S. 985 (1981). Mr. Almond has a ruling on his issue
from Judge Crabb; he seeks to have this court re-litigate that
claim, and under the law, such an effort is frivolous. Horton v.
Thomas, 1996 WL 68013 (N.D. Ill.).
Almond v. Glinski, Case No. 14-cv-1336-pp, at 3-6 (E.D. Wis.).
In this case, the plaintiff again is trying to relitigate the claim that first
Judge Crabb, then this court, dismissed. As described above, he cannot do
that.
Perhaps suspecting that the court might say that he could not raise
these issues for a third time in this case, the plaintiff alleges in the current
complaint that he has “newly discovered exculpatory evidence” regarding the
issues raised in Case No. 14-cv-1336-pp. Dkt. No. 1 at 20. That evidence
consists of a March 10, 2015, letter (titled “Notice”) which he submitted to
Warden Pollard regarding Pollard’s alleged ongoing retaliation against the
plaintiff, as a result of the plaintiff’s continuously challenging the conditions of
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his confinement. Dkt. No. 1 at 20; Dkt. No. 1-1, Exh. P at 37-39. The alleged
new evidence also includes a March 23, 2015, Memorandum from Tony Meli to
the plaintiff which states: “In response to your correspondence; This does not
say anything regarding who is retaliating against you. Your matter can not be
reviewed if you don’t provide information.” Dkt. No. 1-1, Exh. N at 28.
According to the plaintiff, this Meli Memorandum is his most important piece of
new evidence because it proves that the plaintiff has never received any
adequate medical treatment for the small, bleeding hemorrhoid that Dr.
Sumnicht diagnosed on February 7, 2012. Dkt. No. 1 at 20. The plaintiff asks,
based on this allegedly newly-discovered exculpatory evidence, that the court
reconsider and reopen case no. 14-cv-1336-pp. Dkt. No. 1 at 25.
In addition to the new evidence, the plaintiff alleges that because his
untreated, small, bleeding, external hemorrhoid has been left untreated since
February 7, 2012, it has grown to the size of a golf ball, which prevents him
from laying down on his back or side. Dkt. No. 1 at 23.
The plaintiff’s “new evidence”—his letter to Warden Pollard and his
Memorandum from Tony Meli—does not add anything to his claim. Neither of
these documents change the fact that he is arguing that the defendants
violated his rights by leaving his hemorrhoid condition untreated—a claim that
two different courts now have dismissed. The court will not allow the plaintiff to
proceed in this case on a claim that it, and another court, have dismissed as
frivolous already.

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Other motions
Because the court is dismissing the plaintiff’s complaint, it will deny as
moot the numerous other motions he has filed over the course of the last seven
months.
Conclusion
The court DENIES the plaintiff’s motion for leave to proceed in forma
pauperis (Dkt. No. 4).
The court DENIES the plaintiff’s motion for showing prejudices (Dkt. No.
11).
The court DENIES the plaintiff’s motion for preliminary injunction (Dkt.
No. 12).
The court DENIES the plaintiff’s motion for emergency answer or order
(Dkt. No. 15).
The court DENIES the plaintiff’s second motion for emergency answer or
order (Dkt. No. 16).
The court DENIES the plaintiff’s third motion for emergency answer or
order (Dkt. No. 17).
The court ORDERS that this case is DISMISSED for failure to state a
claim, and as frivolous, pursuant to 28 U.S.C. §§1915(e)(2)(B) and 1915A(b)(1).
The court further ORDERS that the clerk of court shall document that
the plaintiff has brought an action which the court dismissed for failure to
state a claim and as frivolous under 28 U.S.C. §§1915(e)(2)(B) and 1915A(b)(1).

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The court further ORDERS that the clerk of court document on the
record that the plaintiff has incurred a “strike” under 28 U.S.C. §1915(g).
The court further ORDERS that the Secretary of the Wisconsin
Department of Corrections or his designee shall collect from the plaintiff’s
prison trust account the remainder of the filing fee ($399.53) by collecting
monthly payments from the plaintiff’s prison trust account in an amount equal
to 20% of the preceding month’s income credited to the prisoner’s trust
account and forwarding payments to the clerk of court each time the amount
in the account exceeds $10 in accordance with 28 U.S.C. §1915(b)(2). The
Secretary shall clearly identify the payments by the case name and number
assigned to this action.
Dated in Milwaukee this 26th day of October, 2015.

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