Almond v. Glinski et al
Filing
31
DECISION AND ORDER signed by Judge Pamela Pepper on 1/7/2016 DENYING 21 plaintiff's Motion for Reconsideration and DENYING 29 plaintiff's Motion for Leave to Appeal in forma pauperis. (cc: all counsel; by US Mail to plaintiff and Warden at Waupun CI and to PLRA Attorney, U.S. Court of Appeals for the 7th Circuit) (pwm)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
______________________________________________________________________________
DWAYNE ALMOND,
Plaintiff,
v.
Case No. 15-cv-365-PP
Appeal No. 15-3467
JOHN J. GLINSKI, et al.,
Defendants.
______________________________________________________________________________
DECISION AND ORDER DENYING PLAINTIFF’S MOTION FOR
RECONSIDERATION (DKT. NO. 21) AND DENYING PLAINTIFF’S MOTION
FOR LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL (DKT. NO. 29)
______________________________________________________________________________
The plaintiff is a pro se prisoner. He filed the complaint alleging that the
defendants failed to treat him for his hemorrhoid, failed to treat his stomach
ailments, and failed to provide him with a bottom bunk bed. Dkt. No. 1. On
October 26, 2015, the court denied the plaintiff’s motion for leave to proceed in
forma pauperis and dismissed this case for failure to state a claim, and as
frivolous.1 Dkt. No. 20. The plaintiff has filed a motion for reconsideration. Dkt.
No. 21. He also has filed a notice of appeal, Dkt. No. 22, and a petition for leave
to proceed in forma pauperis on appeal, Dkt. No. 29. The court will deny these
applications for the reasons explained below.
The court denied the plaintiff’s petition for leave to proceed in forma
pauperis pursuant to 28 U.S.C. § 1915(g) because, on three or more prior
occasions, he had brought an action that the court had dismissed as frivolous,
Because the court dismissed the plaintiff’s complaint, it denied as moot
several other motions the plaintiff had filed. (Dkt. No. 20 at 10.)
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malicious, or failing to state a claim. The court determined that the plaintiff
did not fall under §1915(g)’s imminent danger of serious physical injury
exception to the three-strikes rule, because his filings revealed that he had
received medical attention and treatment. Dkt. No. 20 at 3-5. In addition to
denying the plaintiff’s motion for leave to proceed in forma pauperis, the court
also screened the complaint under 28 U.S.C. § 1915A, and concluded that the
complaint failed to state a claim and was frivolous, because both this court and
another court (Judge Barbara Crabb of the Western District of Wisconsin)
previously had dismissed the claim as frivolous. Dkt. No. 20 at 6-9.
Motion for Reconsideration
In his motion for reconsideration, the plaintiff contends that he is under
imminent danger of serious physical injury. Dkt. No. 21. He asks the court to
order various defendants to submit new x-rays taken by “offsite expert Dr.
Valadares de Sousa” on September 14, 2015. Id. at 8. He argues that these xrays will prove that he is in imminent danger of serious physical injury, and
that he has been left untreated since 2009, despite the fact that the defendants
knew he was in danger. Id. The plaintiff requests that the court issue a
subpoena for Dr. Valadares de Sousa, requiring him to testify regarding the
results of the plaintiff’s “spine, neck, lower abdomen/arthritis” tests. Id. He
also states that he needs emergency surgery for his spine issues.
Federal Rule of Civil Procedure 59(e) “allows a court to alter or amend a
judgment only if the petitioner can demonstrate a manifest error of law or
present newly discovered evidence.” Obriecht v. Raemisch, 517 F.3d 489, 494
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(7th Cir. 2008) (citing Sigsworth v. City of Aurora, Ill., 487 F.3d 506, 511-12
(7th Cir. 2007)). Further, “motions under Rule 59(e) cannot be used to present
evidence that could have been presented before judgment was entered.” Id.
Whether to grant a motion to amend judgment “is entrusted to the sound
judgment of the district court.” In re Prince, 85 F.3d 314, 324 (7th Cir. 1996).
The plaintiff alleged in his March 31, 2015 complaint that the defendants
failed to treat his hemorrhoid and stomach ailments, and that they refused to
allow him a bottom bunk bed. Despite the plaintiff’s assertions that he was
under imminent danger of serious physical injury due to these conditions, the
plaintiff’s later filings described medical care he received, demonstrating to this
court that he was not under imminent danger of serious physical injury.
Moreover, with regard to the merits of the plaintiff’s claims, this court and
Judge Crabb previously dismissed the claims for failure to state a claim. The
plaintiff’s current motion to reconsider contains no new evidence or
information regarding these claims.
In fact, the plaintiff’s assertions in his motion for reconsideration appear
to be largely unrelated to his complaint allegations. He seems now to be
arguing that there is a set of x-rays that was taken in September 2015 that
would show that, despite the fact that he has been receiving medical treatment
(as evidenced by statements in his own pleadings), he has been in imminent
danger since 2009. Even if those x-rays proved that the plaintiff has the
conditions he has alleged, they would not address the fact that the plaintiff has
been receiving treatment, which is why the court concluded that he was not in
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imminent danger. Further, the plaintiff has not shown that this court’s order
denying his petition for leave to proceed in forma pauperis, dismissing his
complaint, and denying as moot his other motions, contained any manifest
errors of law. The court will deny his motion for reconsideration.
Petition for Leave to Proceed In Forma Pauperis on Appeal
The plaintiff has filed a notice of appeal and a petition for leave to
proceed in forma pauperis on appeal. In the motion to proceed in forma
pauperis, he asserts that his issues on appeal are: “I’m suffering from serious
chronic Distressful injuries/conditions, that’s in imminent Danger, under 28
U.S.C. § 1915(g), that’s (“Life-Threatening Harms”).” Dkt. No. 7-2 at 1.
A prisoner may not bring an action or appeal a civil judgment in forma
pauperis,
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).
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. 06-C448-C (W.D. Wis.); (3) Almond v. Wisconsin, Case No. 06-C-449-C (W.D. Wis.);
and (4) Almond v. Glinski, Case No. 14-CV-1336-PP (E.D. Wis.). As discussed
above, this court already has determined that the plaintiff is not under
imminent danger of serious physical injury. Accordingly, the court will deny
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the plaintiff’s petition for leave to proceed in forma pauperis on appeal pursuant
to 28 U.S.C. §1915(g).
The plaintiff incurred a filing fee by filing the notice of appeal. Newlin v.
Helman, 123 F.3d 429, 433-34 (7th Cir. 1997), rev’d on other grounds by,
Walker v. O’Brien, 216 F.3d 626 (7th Cir. 2000) and Lee v. Clinton, 209 F.3d
1025 (7th Cir. 2000). The fact that this court is denying the request to proceed
in forma pauperis on appeal means that the full appeal fee of $505.00 is due
within fourteen days of this order. Id.; Seventh Cir. R. 3(b). Failure to pay in
full within the time limits will result in a dismissal. Newlin, 123 F.3d at 434.
Conclusion
The court DENIES the plaintiff’s motion for reconsideration. (Dkt. No. 21)
The court DENIES the plaintiff’s motion for leave to proceed in forma
pauperis on appeal. (Dkt. No. 29)
The court further ORDERS that the plaintiff shall forward to the clerk of
this court the sum of $505.00 as the full filing fee in this appeal by JANUARY
22, 2016. The plaintiff shall clearly identify the payment by the case name and
number assigned to this case.
The court will send a copy this order to the Warden of Waupun
Correctional Institution, 200 S. Madison Street, P.O. Box, 351, Waupun,
Wisconsin 53963, and to PLRA Attorney, United States Court of Appeals for the
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Seventh Circuit, 219 S. Dearborn Street, Rm. 2722, Chicago, Illinois 60604.
Dated in Milwaukee, Wisconsin this 7th day of January, 2016.
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