UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK
July 24, 2008
WILLIAM ESCALERA, PLAINTIFF,
H. GRAHAM, SUPERINTENDENT; ET AL., DEFENDANTS.
The opinion of the court was delivered by: George H. Lowe, United States Magistrate Judge
This pro se prisoner civil rights action, commenced pursuant to 42 U.S.C. § 1983, has been referred to me by the Honorable Gary L. Sharpe, United States District Judge, to hear and determine all pretrial matters (of a non-dispositive nature) and issue report-recommendations on all dispositive matters before the Court, pursuant to 28 U.S.C. § 636(b) and Local Rule 72.3(c). On May 27, 2008, I issued (1) an Order denying Plaintiff's motion to proceed in forma pauperis because of the "Three Strikes" Rule (pursuant to 28 U.S.C. §§ 1915[g]), and (2) a Report-Recommendation that the Court dismiss Plaintiff's Complaint (pursuant to 28 U.S.C. §§ 1915[e][B][ii], 1915A) if he has not, within thirty (30) days, (1) paid the Court's filing fee of three hundred fifty dollars ($350), and (2) filed an Amended Complaint that complies with Fed. R. Civ. P. 8(a)(2), 10(b), and 12(b)(6). (Dkt. No. 7.)
On July 8, 2008 (after being granted two extensions of time by which to do so), Plaintiff filed an Amended Complaint. (Dkt. Nos. 9-11.) However, Plaintiff failed to pay the Court's filing fee of three hundred fifty dollars. (See Docket Sheet.) Indeed, in his Amended Complaint, Plaintiff alleges that he "is without funds and has no way of paying this amount $350.00 to the court in time allowed." (Dkt. No. 11, at 7 [Plf.'s Am. Compl.].) Instead, Plaintiff has apparently attempted to allege that he was in imminent danger of serious physical injury at the time he brought this action, thus falling under an exception to the "Three Strikes" Rule.*fn1 Out of special solicitude to Plaintiff, I have carefully scrutinized his Amended Complaint for any factual allegations plausibly suggesting that he was in imminent danger of serious physical injury at the time he brought this action.*fn2 However, I have found none.
As explained in my prior Report-Recommendation, the date that Plaintiff "brought this action," for purposes of the "Three Strikes" Rule, was April 12, 2008 (which was the date on which he signed his original Complaint). (Dkt. No. 7, at 5-6 & n.4.) The only portions of Plaintiff's Amended Complaint that allege any physical injuries at all occurring after 2007 are Paragraphs 2, 7, 8, and 9 of his Amended Complaint.
Specifically, in Paragraph 2 of his Amended Complaint, Plaintiff alleges as follows, in pertinent part:
On the 24th day of June, 2008, [during an] Auburn Corr. Fac. Medical appt. at approx. 9:50 AM[,] . . . [a] health care provider . . . discovered that I have a hernia in the lower left hand side of stomach near the groin due to excessive force of being ass[a]ulted by CO.
Bradely on the 8th day of June 2006. . . . [Now I am] to see [a] surgeon--Dr. Cutie. (Dkt. No. 11, ¶ 2 [Plf.'s Am. Compl.].) However, Plaintiff alleges no facts plausibly suggesting that he was in imminent danger of serious physical injury at the time he brought this action, i.e., on April 12, 2008. (Id.) Moreover, even if I were to liberally construe the time-of-filing element of the "Three Strikes" Rule so that it included the date on which Plaintiff signed his Amended Complaint (on July 3, 2008),*fn3 I would still find that Plaintiff alleges no facts plausibly suggesting that he was in imminent danger of serious physical injury at the time he brought this action. This is because Plaintiff does not allege that any medical care provider was (at the time question) refusing to see him, or care for him, with regard to his hernia condition. To the contrary, he alleges that, on June 24, 2008, a health care provider diagnosed the hernia condition; and that, on that same date, he was scheduled to be cared for by a surgeon. (Id. at ¶ 2.) As a result, this case is analogous to the case of Green v. Quigley, in which the U.S. District Court for the Western District of Missouri ruled that, because a prisoner had alleged facts plausibly suggesting that he was receiving medical care for his hernia (although not the medical care he would have liked), he was not in imminent danger of serious physical injuryat the time he brought his action, for purposes of the "Three Strikes" Rule. Green v. Quigley, 04-CV-4316, 2005 U.S. Dist. LEXIS 42903, at *1-3 (W.D. Mo. July 29, 2005).
In Paragraph 7 of his Amended Complaint, Plaintiff alleges as follows, in pertinent part:
Under the imminent danger of serious physical injury when this civil action was brought into existence [I] had filed grievances . . . [regarding] the incident which had occurred on the 10th day of February 2008. [On that date] Lieutenant Burnes had opened my cell to . . . question [me] about a grievance that was written by [me].
When [I] began to explain[,] Lt. Burnes reached out with his right hand, slapping [me] across the [illegible] side of face while in pursuit of [me] going up the stairs in C-Block. (Id. at ¶ 7.) A slap in the face in February of 2008 hardly constitutes imminent danger of serious physical injury in April or July of 2008.
Finally, in Paragraphs 8 and 9 of his Amended Complaint, Plaintiff alleges as follows, in pertinent part:
[O]n the 18th day of August, 2006 [D.O.C.S.] performed surgery on [my] right foot big toe [to remove a] bunion . . . and the same procedure was to be done to the left foot. [Since then, I have] been to two different [Special Housing Units--at] Upstate Corr. Fac. and Governeur Corr. Fac. And [I have] been told to wait until I reach the next facility, Auburn [Corr. Fac.], in order to speak with my primary care provider [about having the bunion on my left big toe removed]. Two years have [passed] and [I have] been told to wait until [I get] home in order to have the procedure taken care of. . . . The condition was obvious [and] D.O.C.S. purposefully ignored it . . . .
In [any] event[,] the judges [of] this court, [the] Northern District [of New York,] ha[ve] ignored the fact that [I have] been refused [m]y medical [care by] D.O.C.S. . . . from [August] of 2006 to the 7th day of May, 2008[,] beginning with the unfinished procedure of foot toe bunion. . . . [In addition, I] was keeplocked for 30 days [for requesting] . . . Sick Call in Auburn Corr. Fac. on . . . April 4 and April 7, 2008. When requesting to see [a] medical care provider, [I was] told by [an] Administrative Nurse [that] showers are for homosexuals, and [that] if [I] was to have a seizure there would not be anything they could do. Knowing [I] was out of medication[,] . . . she stated [that,] due to not having sore[s] on [my] face and body, [I] shouldn't be allowed to have the medication for Eczema and [that] if it was left to [her], [I] would not receive it. [She] [s]tated [that] on the 8th day of April, 2008. (Id. at ¶¶ 8-9.) Having a foot bunion does not constitute being in imminent danger of serious physical injury.*fn4 Nor does having eczema constitute being in imminent danger of serious physical injury.*fn5
With regard to his alleged seizure disorder, Plaintiff alleges no facts plausibly suggesting that the denial of showers on April 4 and 7, 2008, would cause him to experience seizures, on April 12, 2008 (if ever). (Id.) Rather, Plaintiff appears to be alleging that, by denying him what he called a "medical shower" on page 4 of his original Complaint (a pleading that has been superseded in its entirety by the filing of his Amended Complaint), the unidentified "Administrative Nurse" has denied him the ability to access a shower that would somehow accommodate his seizure condition (perhaps by having non-slip flooring materials and handrails in the event he experienced a seizure during the shower). To the extent that Plaintiff is so alleging, the "serious physical injury" that he is alleging (e.g., fractures or unconsciousness due to slipping or falling) is entirely speculative; thus, there is no "imminent risk" of that injury.*fn6
Simply stated, the denial of access to "medical showers" or handicap-accessible showers, in and of itself, does not place an inmate in imminent danger of serious physical injury.*fn7 Finally, I note that the crux of Plaintiff's seizure claim appears to be a disagreement with a medical care professional over the appropriate care or treatment needed for his seizure disorder, which is not even actionable under 42 U.S.C. § 1983.*fn8
For all of these reasons, I find that Plaintiff is not entitled to benefit from the "imminent danger" exception to the "Three Strikes" Rule, and that he must pay the Court's filing fee. Because he has not done so, and has expressed his inability to do so, I recommend that his Complaint be dismissed.
Because I have already found that a reason exists to dismiss Plaintiff's Amended Complaint, I need not, and do not, address the issue of whether Plaintiff's Amended Complaint corrects the pleading deficiencies (pursuant to Fed. R. Civ. P. 8[a], 10[b], and 12[b]) in his original Complaint, which I identified in my prior Report-Recommendation. (See Dkt. No. 7, at 8-9 [Report-Recommendation of May 27, 2008].) However, in the event the Court finds it necessary, I would of course promptly do so.
ACCORDINGLY, it is RECOMMENDED thatPlaintiff's Amended Complaint (Dkt. No. 11) be DISMISSED due to (1) Plaintiff's failure to pay the Court's filing fee of three hundred fifty dollars ($350), and (2) his failure, in his Amended Complaint, to allege facts plausibly suggesting that he is entitled to benefit from the exception to the "Three Strikes" Rule (28 U.S.C. §§ 1915[g]) for cases in which prisoners were in imminent danger of serious physical injury at the time they brought the action.
ANY OBJECTIONS to this Supplemental Report-Recommendation must be filed with the Clerk of this Court within TEN (10) WORKING DAYS, PLUS THREE (3) CALENDAR DAYS from the date of this Supplemental Report-Recommendation (unless the third calendar day is a legal holiday, in which case add a fourth calendar day). See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b); N.D.N.Y. L.R. 72.1(c); Fed. R. Civ. P. 6(a)(2), (d).
BE ADVISED that the District Court, on de novo review, will ordinarily refuse to consider arguments, case law and/or evidentiary material that could have been, but were not, presented to the Magistrate Judge in the first instance.*fn9
BE ALSO ADVISED that the failure to file timely objections to this Supplemental Report-Recommendation will PRECLUDE LATER APPELLATE REVIEW of any Order of judgment that will be entered. Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993) (citing Small v. Sec'y of H.H.S., 892 F.2d 15 [2d Cir. 1989]).