Almond, Dwayne v. Lesatz, Mark et al

Filing 5

ORDER that plaintiff may have until July 15, 2011 to advise the court how he wishes to proceed in this case. Plaintiff is to submit an Amended Complaint or a $350 filing fee (or both) by 7/15/2011. Signed by District Judge Barbara B. Crabb on 6/24/2011. (jef),(ps)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - DWAYNE ALMOND,
OPINION and ORDER
Plaintiff,
11-cv-333-bbc
v.
MARK LESATZ, LT. SWIEKATOWSKI,
JEAN LUTSEY, MICHAEL J. MOHR,
JEANANNA ZWIERS and
JOHN DOE ATTORNEY GENERAL,
Defendants.
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Plaintiff Dwayne Almond, a prisoner at the Green Bay Correctional Institution, has
filed this action under 42 U.S.C. § 1983, alleging that defendants have failed to provide him
with adequate medical treatment both in the past and the present, and that they have misled
this court into believing that he failed to exhaust his administrative remedies in previous
litigation. Plaintiff has struck out under 28 U.S.C. § 1915(g), which means that he cannot
obtain indigent status under § 1915 in any suit he files during the period of his incarceration
unless he alleges facts in his complaint from which an inference may be drawn that he is in
imminent danger of serious physical injury. After applying 28 U.S.C. § 1915(g) to plaintiff’s
claims, I conclude that his claims regarding his medical treatment in 2006 and the ensuing
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lawsuit do not meet this requirement and he will have to pay a $350 filing fee to pursue
these claims. Also, I conclude that plaintiff’s Eighth Amendment claims regarding his current
treatment violate Fed. R. Civ. P. 8, and he will have to file an amended complaint if he wants
to pursue these claims. Therefore, I will give plaintiff a chance to choose which claim or
claims he wishes to litigate in this case.
I draw the following facts from plaintiff’s complaint.

ALLEGATIONS OF FACT
Plaintiff Dwayne Almond was transferred to the Green Bay Correctional Institution
on March 31, 2006. The Health Services Unit there was aware that plaintiff has reported
chronic back pain. The weekend that plaintiff was transferred, his back “went out on him”
and he fell to the floor in severe pain. Plaintiff was unable to get up.
Defendant Mark Lesatz, a lieutenant at the prison, was supervising plaintiff’s
segregation unit that weekend. On April 3 or 4, 2006, Lesatz saw plaintiff on the floor and
was aware that he was in severe pain and could not get up, but he left plaintiff on the floor
rather than assisting him.
On April 4, 2006, defendant Lieutenant Swiekatowski came to the segregation unit
and took plaintiff to the Health Services Unit. Defendant Nurse Lutsey examined plaintiff
but did not treat him in any way, despite the fact that plaintiff remained in pain. This
examination does not show up in plaintiff’s medical records. Defendant Jeananna Zwiers,
manager of the medical records in the Health Services Unit, was aware of plaintiff’s request

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for treatment but did not correct the omitted examination.
When plaintiff brought a lawsuit in this court regarding this treatment, defendant
Michael Mohr, an institution complaint examiner, lied in his affidavit that plaintiff failed to
exhaust his administrative remedies regarding this claim. The lawyers for the state conspired
with Mohr to deceive the court.
Plaintiff continues to have back pain. Plaintiff also has a “lower abdomen infection”
that is “eat[ing] up” his abdomen, but he is not receiving adequate medical care for either
ailment.

OPINION
28 U.S.C. § 1915(g) reads as follows:
In no event shall a prisoner bring a civil action or appeal a judgment in a civil
action or proceeding under this section 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.
On at least three prior occasions, plaintiff has brought actions that were dismissed because
they were frivolous, malicious or failed to state a claim upon which relief may be granted.
Almond v. State of Wisconsin, 06-C-447-C, decided August 23, 2006; Almond v. State of
Wisconsin, 06-C-448-C, decided August 23, 2006; and Almond v. State of Wisconsin,
06-C-449-C, decided August 24, 2006. Therefore, he cannot proceed in this case unless I
can find that he has alleged that he is in imminent danger of serious physical injury.

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To meet the imminent danger requirement of § 1915(g), a prisoner must allege a
physical injury that is imminent or occurring at the time the complaint is filed and must
show that the threat or prison condition causing the physical injury is real and proximate.
Ciarpaglini v. Saini, 352 F.3d 328, 330 (7th Cir. 2003) (citing Heimermann v. Litscher, 337
F.3d 781 (7th Cir. 2003); Lewis v. Sullivan, 279 F.3d 526, 529 (7th Cir. 2002)). Ordinarily,
claims of physical injury arise in the context of lawsuits alleging Eighth Amendment
violations.

In his complaint, plaintiff first raises claims that defendants Lesatz,

Swiekatowski, Lutsey and Zwiers ignored his need for medical care in 2006, and that in the
ensuing lawsuit, defendants Mohr and John Doe Attorney General conspired to lie to the
court about whether plaintiff exhausted his administrative remedies regarding the lack of
treatment. As plaintiff should be well aware from the numerous cases he has filed in this
court, these claims regarding treatment in 2006 do not qualify under the imminent danger
standard because they concern actions that occurred in the past. Defendants’ actions in
2006 regarding an incident in segregation and an ensuing lawsuit have nothing to do with
plaintiff’s current treatment. Therefore, plaintiff cannot proceed with these claims unless he
pays the full $350 filing fee.
Plaintiff’s other claims appear to be that he is not receiving adequate treatment for
his back and abdomen ailments. These claims might meet the imminent danger standard,
but I cannot make that determination on the basis of plaintiff’s current pleadings because
his allegations regarding these claims violate Fed. R. Civ. P. 8.
Fed. R. Civ. P. 8(a)(2) requires that a complaint include “a short and plain statement

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of the claim showing that the pleader is entitled to relief.”

At this point, plaintiff’s

allegations are too vague to alert the proper defendants of what they did to violate plaintiff’s
rights. One problem is that plaintiff does not say which defendants were involved in his
current treatment. Another problem is that plaintiff does not provide enough detail about
his claims, such as what he has done to request treatment and how defendants have
responded to his complaints. Another possible problem for plaintiff is that he has just
litigated claims about treatment for his back in case no. 09-cv-335-bbc. In that case,
judgment was entered in defendants’ favor on March 7, 2011. Unless plaintiff can identify
more recent problems with his treatment that were not a part of that lawsuit, his claims
regarding his back ailments cannot succeed.
Given the problems with plaintiff’s complaint detailed above, he will have to choose
how to proceed with this lawsuit. He will have until July 15, 2011 to choose one of the
following options.
If he wishes to proceed in forma pauperis only on his Eighth Amendment claims
regarding his current treatment, he will have to submit an amended complaint that more
clearly sets out his claims in accordance with Rule 8, and he will also have to tell the court
whether he wishes to dismiss his claims about past care in 2006 and the lawsuit connected
to that treatment.
If he wishes to proceed only with his claims about the 2006 treatment and the
ensuing lawsuit in which he contends that state employees conspired to lie about his
exhaustion of state remedies, he will have to pursue this case as a paying litigant. He must

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submit a check or money order made payable to the clerk of court in the amount of $350
and also indicate his desire to dismiss his claims about his current care.
If plaintiff wishes to pursue both claims, then he will have to submit $350 for the
filing fee and amend his complaint to set out in more detail his claims about his current
treatment.

ORDER

IT IS ORDERED that plaintiff Dwayne Almond may have until July 15, 2011, to
advise the court how he wishes to proceed with this case as explained above.
Entered this 24th day of June, 2011.
BY THE COURT:
/s/
BARBARA B. CRABB
District Judge

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