Scott, Michael et al v. Perttu, J. et al

Filing 7

ORDER denying plaintiff Michael Scott leave to proceed in forma pauperis under 28 U.S.C. § 1915(g) and dismissing his complaint pursuant to Fed. R. Civ. P. 8. Amended Complaint due 10/6/2017. Signed by District Judge Barbara B. Crabb on 9/18/2017. (jef),(ps)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
- - - - - - - - - - - - - - - - - - - - - - - - - - - -- - - - - - - - - - - - - - - - - MICHAEL SCOTT,
OPINION and ORDER
Plaintiff,
17-cv-609-bbc
v.
J. PERTTU, J. LABELLE, NURSE NIVAS,
NURSE LEMENS, B. HOMPE, CINDY O’DONNELL
and MANAGER LUTSEY,
Defendants.
- - - - - - - - - - - - - - - - - - - - - - - - - - - -- - - - - - - - - - - - - - - - - Pro se plaintiff Michael Scott is incarcerated at the Green Bay Correctional
Institution. He filed this proposed civil action under 42 U.S.C. § 1983, contending that he
has received inadequate treatment for a skin rash. He has requested leave to proceed
without prepayment of the filing fee, but as he acknowledges in his complaint, he has “struck
out” under 28 U.S.C. § 1915(g). Under § 1915(g), a prisoner is not allowed to bring a civil
action in federal court without first paying the fee, if three or more of his civil actions or
appeals have been dismissed as frivolous, malicious or for failure to state a claim upon which
relief may be granted.

The sole exception to the three-strikes rule is if the plaintiff’s

pleadings show that he is in imminent danger of serious physical injury. 28 U.S.C. §
1915(g).
Court records confirm that plaintiff has filed at least three previous civil actions while
imprisoned that were dismissed as frivolous or for failure to state a claim. Scott v. Aurora
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Sinai, 09-C-745 (E.D. Wis. Sept. 23, 2009); Scott v. McCabe, 10-cv-138- bbc (W.D. Wis.
Apr. 26, 2010); Scott v. Columbia Correctional Institution, 11-cv-384-bbc (W.D. Wis. July
7, 2011). Consequently, plaintiff may not proceed with this action without prepaying the
fees unless he shows that he is in imminent danger of serious physical injury. After reviewing
plaintiff’s complaint, I conclude that he may not proceed at this time because his complaint
does not allege that he is in imminent danger. In fact, his complaint is too vague to satisfy
the pleading requirements of Federal Rule of Civil Procedure 8. Therefore, I am dismissing
his complaint and giving him an opportunity to file an amended complaint that explains his
claims more clearly.

OPINION
Plaintiff acknowledges in his complaint that he must plead facts supporting a finding
of imminent danger of serious physical injury. Nonetheless, he has failed to do so. Plaintiff
alleges in his complaint that he has a skin rash that itches, stings, burns and peels. However,
he does not allege that he has been denied treatment for his rash, but rather that there was
a delay in processing his prescription for ointment. He also alleges that he is not permitted
to keep the ointment in his cell, so he has to wait for the ointment to be delivered to his cell
twice a day. Finally, he alleges that he requested that pictures be taken of his rash, but
health services staff refused to take pictures.
These allegations do not suggest that plaintiff is in imminent danger of serious
physical injury sufficient to invoke the exception provided in § 1915(g). Plaintiff admits he

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has been provided some treatment for his rash and has not suggested that his rash presents
a “genuine emergency” or a “real and proximate” threat of serious harm. Heimermann v.
Litscher, 337 F.3d 781, 782 (7th Cir. 2003). In fact, plaintiff’s primary complaint seems
to be that prison staff refused to take pictures of his rash. In his request for relief, plaintiff
asks that the court order DOC to take such pictures. However, staff members’ failure to take
pictures does not present a risk of imminent danger.
Because plaintiff has not met the imminent danger standard, at this stage I normally
would instruct plaintiff to submit the $400 filing fee so his complaint could be screened
under § 1915A. However, because plaintiff’s allegations are so confusing and vague, I would
dismiss his complaint immediately under Federal Rule of Civil Procedure 8 even if he
submitted the $400 filing fee.
Under Rule 8, plaintiff is required to provide fair notice of his claims to each
defendant and set out claims that are plausible on their face. Appert v. Morgan Stanley
Dean Witter, Inc., 673 F.3d 609, 622 (7th Cir. 2012); Bausch v. Stryker Corp., 630 F.3d
546, 559 (7th Cir. 2010). Here, plaintiff’s allegations are too confusing and vague to
provide fair notice of his claims against each defendant. Although he says there was a delay
in processing his prescription apparently caused by defendant Nivas, he provides no details
about the delay, how Nivas caused it, how the delay affected him or why he believes the
delay violated his rights.

Likewise, he does not explain specifically what action each

individual defendant took that resulted in a violation of his constitutional rights.
Rather than give plaintiff the opportunity to pay the full filing fee, then, I will give

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him an opportunity to file an amended complaint that provides fair notice to defendants of
the claims he is asserting against them. Plaintiff should draft the amended complaint as if
he were telling a story to people who know nothing about his situation. This means that
someone reading the complaint should be able to answer the following questions:
(1) What is the nature of plaintiff’s skin condition?
(2) What treatment has he received for his skin condition, who provided it and when?
(3) Why does he believe defendants violated his rights with respect to treatment of
his skin condition?
(4) What did each individual defendant do that makes him or her liable for failing
to treat plaintiff’s skin condition?
(5) Why does plaintiff believe he is in imminent danger of serious physical injury?
(6) How does he think the court can help him?
Plaintiff should take care to identify the specific actions taken by each individual
defendant that he believes violated his rights. He should set forth his allegations in separate,
numbered paragraphs using short and plain statements. After he finishes drafting his
complaint, he should review the complaint and consider whether it could be understood by
someone who is not familiar with the facts of his case. If not, he should make necessary
changes.
If plaintiff submits an amended complaint by the deadline set forth below, I will
review it. If he does not submit an amended complaint or show good cause why he is unable
to do so, I will dismiss the case because plaintiff has failed to state a claim upon which relief

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may be granted.

ORDER
IT IS ORDERED that plaintiff Michael Scott is DENIED leave to proceed in forma
pauperis under 28 U.S.C. § 1915(g), and his complaint is DISMISSED under Fed. R. Civ.
P. 8. Plaintiff may have until October 6, 2017, to file an amended complaint that complies
with Fed. R. Civ. P. 8 as explained above.
Entered this 18th day of September, 2017.
BY THE COURT:

/s/
________________________
BARBARA B. CRABB
District Judge

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