Scott, Michael v. Lavoie et al

Filing 6

ORDER that plaintiff Michael Scott is DENIED leave to proceed in forma pauperis under 28 U.S.C. § 1915(g). This case is DISMISSED without prejudice, subject to being reopened if plaintiff submits the $400 filing fee by June 23, 2020. Signed by District Judge Barbara B. Crabb on 6/2/2020. (rks),(ps)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
- - - - - - - - - - - - - - - - - - - - - - - - - - - -- - - - - - - - - - - - - - - - MICHAEL SCOTT,
OPINION AND ORDER
Plaintiff,
20-cv-422-bbc
v.
DR. LAVOIE, C. BAIER, C. FRANCOIS,
M. TALLIER, CAPTAIN SWIEKATOWSKI,
S. CUMMINGS, H. UTTER, J. PERTTU,
R. MATUSHAK, E. DAVIDSON AND
C. O’DONNELL,
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
prison staff have violated his constitutional rights. 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. 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 Sinai, 09-C-745 (E.D. Wis. Sept. 23, 2009); Scott v. McCabe, 10-cv-138bbc (W.D. Wis. Apr. 26, 2010); Scott v. Columbia Correctional Institution, 11-cv-384-bbc
(W.D. Wis. July 7, 2011).
1

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. 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 without prepayment of the filing fee because his complaint does not allege that he
is in imminent danger. Therefore, I am dismissing his complaint without prejudice. If
plaintiff pays the $400 filing fee, I will reopen the case and screen it under 28 U.S.C. §
1915A.

OPINION
Plaintiff acknowledges in his complaint that he must plead facts supporting a finding
of imminent danger of serious physical injury. However, he has failed to do so. Plaintiff
alleges that he has multiple health problems, including eye problems, tooth pain, dry skin,
headaches and foot problems. Plaintiff says that health services staff is not addressing his
numerous health problems adequately. However, plaintiff also alleges that he has had several
appointments with health services staff in the past few weeks, and that he has received
various treatments, including pain medication for his headaches, lotion for his skin and foot
treatments for fungal infections. He has also submitted documents showing that he is on
a list to be seen by the eye doctor, but that non-emergency appointments outside the prison
are on hold due to the Covid-19 pandemic.
These allegations do not support an inference that plaintiff faces imminent danger of

2

serious physical injury sufficient to invoke the exception provided in § 1915(g). Instead,
plaintiff’s allegations suggest that he wants to be seen more frequently and that he disagrees
with the treatment provided by health services staff. But a disagreement about treatment
is not enough to support a constitutional claim, let alone support a claim of imminent
danger. Lockett v. Bonson, 937 F.3d 1016, 1024 (7th Cir. 2019) (disagreements about
medical treatment are not enough, by themselves, to establish Eighth Amendment violation).
In sum, none of plaintiff’s allegations suggests that plaintiff is facing a “genuine emergency”
or a “real and proximate” threat of serious harm. Heimermann v. Litscher, 337 F.3d 781,
782 (7th Cir. 2003). Therefore, plaintiff’s complaint does not meet the exception under §
1915(g).
Because plaintiff has not identified a genuine emergency, he may not proceed without
prepayment of the filing fee. I will dismiss this case without prejudice. If plaintiff pays the
$400 filing fee, he may move to reopen the case.

ORDER
IT IS ORDERED that
1. Plaintiff Michael Scott is DENIED leave to proceed in forma pauperis under 28
U.S.C. § 1915(g).

3

2. This case is DISMISSED without prejudice, subject to being reopened if plaintiff
submits the $400 filing fee by June 23, 2020.
Entered this 2d day of June, 2020.
BY THE COURT:
/s/
________________________
BARBARA B. CRABB
District Judge

4