Ciarpaglini, Robert v. Saini, Narinder ( 2003 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 01-2657
ROBERT BRUNO CIARPAGLINI,
Plaintiff-Appellant,
v.
DOCTOR NARINDER SAINI, DOCTOR LAURENS D. YOUNG,
AND PHIL KINGSTON,
Defendants-Appellees.
____________
Appeal from the United States District Court
for the Western District of Wisconsin.
No. 01-C-326-S—John C. Shabaz, Judge.
____________
ARGUED SEPTEMBER 3, 2003—DECIDED DECEMBER 11, 2003
____________
Before POSNER, KANNE, and EVANS, Circuit Judges.
EVANS, Circuit Judge. Robert Bruno Ciarpaglini, a pris-
oner in Wisconsin, is a frequent filer. He has had three
previous lawsuits dismissed for the reasons stated in 28
U.S.C. § 1915(g)—in other words, he has filed three pre-
vious lawsuits that were dismissed because they were
frivolous, malicious, or failed to state a claim upon which
relief could be granted. His frequent filer status means he
cannot proceed in forma pauperis (IFP) in a new civil suit
unless he is “under imminent danger of serious physical
2 No. 01-2657
injury.” 28 U.S.C. § 1915(g). This does not mean he cannot
proceed in any civil suit; it just means he must pay a filing
fee unless he meets the imminent danger statutory ex-
ception. Id. See also Abdul-Wadood v. Nathan, 91 F.3d
1023, 1024 (7th Cir. 1996); Lewis v. Sullivan, 279 F.3d 526,
527 (7th Cir. 2002).
According to his complaint, Ciarpaglini was diagnosed
with attention deficit hyperactivity disorder (ADHD) when
he was a child. While incarcerated at the Racine Correc-
tional Institution he was additionally diagnosed as having
bipolar disorder and panic disorder. The doctor who diag-
nosed him with these illnesses provided him with five
different medications to help him cope with his problems.
According to Ciarpaglini, these medications did help allevi-
ate his symptoms.
When Ciarpaglini was transferred to Columbia Correc-
tional Institution, he alleges that he was seen by the prison
psychiatrist, who confirmed his diagnoses of bipolar
disorder, ADHD, and panic disorder. But his bipolar dis-
order medication was discontinued. Shortly thereafter, he
was taken off the medications for his ADHD and panic
disorder. Ciarpaglini sued, seeking injunctive relief and
monetary damages from the prison doctor and prison
officials. The district court, in a rather confusing conclusion
to a short order, said:
IT IS ORDERED that petitioner’s request to proceed
in forma pauperis is GRANTED.
IT IS FURTHER ORDERED that plaintiff’s com-
plaint is DISMISSED with prejudice pursuant to 28
U.S.C. §1915(g).
The reference to § 1915(g) means that the court found
Ciarpaglini’s allegations to be insufficient to meet that
“imminent danger” requirement. But if this is what the
court meant to do, and we think that it is, it should not
No. 01-2657 3
have “granted” the request to proceed in forma pauperis. It
should have denied the request and dismissed the case.
Passing that little glitch, we move on.
We first address a motion filed by the defendants claim-
ing that Ciarpaglini’s case is moot. After filing this suit, he
was transferred from a state prison to county jail. The
defendants claim this moots the case because frequent filers
can only file claims for prospective relief under 28 U.S.C. §
1915(g). However, § 1915(g) does not have such a broad
reach. It only limits when frequent filers can proceed IFP,
and says nothing about limiting the substance of their
claims. Thus, the case is not moot.
We review de novo the district court’s interpretation of
the Prison Litigation Reform Act’s three strikes provision,
§ 1915(g). Evans v. Illinois Dep’t of Corrections, 150 F.3d
810, 811 (7th Cir. 1998); see also Dupree v. Palmer, 284 F.3d
1234, 1235 (11th Cir. 2002). In order to meet the imminent
danger requirement of 28 U.S.C. § 1915(g), the “threat or
prison condition [must be] real and proximate.” Lewis v.
Sullivan, 279 F.3d 526, 529 (7th Cir. 2002). Allegations of
past harm do not suffice; the harm must be imminent or
occurring at the time the complaint is filed. Heimermann v.
Litscher, 337 F.3d 781 (7th Cir. 2003). Before denying leave
to proceed IFP, courts must review a frequent filer’s well-
pled allegations to ensure that the prisoner is not in
imminent danger. Rivera v. Allen, 144 F.3d 719, 726 (11th
Cir. 1998).
It is well-established that pro se complaints must be
liberally construed. Donald v. Cook County Sheriff’s Dep’t,
95 F.3d 548, 555 (7th Cir. 1996). Ciarpaglini is alleging (we
must accept these claims as true now; they may in fact be
bogus) continuing harm as a direct result of being denied
his medication. While he was taking his medication, he
says, his symptoms were alleviated. Now, they are back. He
says his panic attacks cause him to suffer heart palpita-
tions, chest pains, labored breathing, choking sensations,
4 No. 01-2657
and paralysis in his legs and back. The question is whether
these allegations are sufficient to find that Ciarpaglini,
when he filed his complaint, satisfied the “imminent danger
of serious physical injury” requirement of 28 U.S.C.
§ 1915(g).
Frequent filers sometimes allege that they are in immi-
nent danger so they can avoid paying a filing fee. But when
they allege only a past injury that has not recurred, courts
deny them leave to proceed IFP. See, e.g., Abdul-Akbar v.
McKelvie, 239 F.3d 307 (3rd Cir. 2001) (being sprayed with
pepper spray once not imminent danger); Abdul-Wadood v.
Nathan, 91 F.3d 1023 (7th Cir. 1996) (being given Ibuprofen
instead of something stronger for injury, now healed, is not
imminent danger).
Courts also deny leave to proceed IFP when a prisoner’s
claims of imminent danger are conclusory or ridiculous. See,
e.g., Heimermann v. Litscher, 337 F.3d at 782 (contesting
one’s conviction and complaining of inadequate protection
2 years previously is not imminent danger); Martin v.
Shelton, 319 F.3d 1048, 1050 (8th Cir. 2003) (working
in inclement weather twice is not imminent danger); White
v. Colorado, 157 F.3d 1226, 1231 (10th Cir. 1998) (“vague
and conclusory” assertions of withheld medical treatment
when prisoner was seen over 100 times by physician is not
imminent danger).
Other circuits have considered the imminent danger
requirement. Being placed near inmates on one’s enemies
list, despite pleas for transfer to a different location after
being beaten by those enemies, meets this amorphous
standard. Ashley v. Dilworth, 147 F.3d 715 (8th Cir. 1998).
Continuing headaches and other symptoms as a result of
exposure to dust, lint, and shower odor also meets this
standard. Gibbs v. Cross, 160 F.3d 962, 965-66 (3rd Cir.
1998). So does needing dental care because of a mouth
infection. McAlphin v. Toney, 281 F.3d 709, 710 (8th Cir.
2002).
No. 01-2657 5
The State says Ciarpaglini’s allegations are not serious
enough. However, § 1915(g) is not a vehicle for determining
the merits of a claim. To follow the State’s logic, a district
court would not just need to determine whether a prisoner
is alleging some type of ongoing or imminent harm. It would
also need to fine-tune what is “serious enough” to qualify for
the exception. Is being denied heart medication? What
about a cholesterol-lowering drug? How frequently do
beatings need to occur before they are serious? This would
result in a complicated set of rules about what conditions
are serious enough, all for a simple statutory provision
governing when a prisoner must pay the filing fee for his
claim. This is not required, and so we find that the district
court erred in concluding that Ciarpaglini’s complaint didn’t
meet the imminent danger exception.
There is, however, another problem with Ciarpaglini’s
complaint—it alleges way too much. Once a complaint
passes the “imminent danger” pleading requirement, it
must still pass the district court’s “screening” process under
§ 1915A(b)(1) before a defendant is required to get into the
fray. That section requires the dismissal of a complaint that
is frivolous or malicious, or one that fails to state a claim
upon which relief may be granted. Here, Ciarpaglini doesn’t
simply allege that his medication is being gratuitously
withheld without a reason. Instead, he says that prison
doctors decided to stop this particular course of treatment.
He also says that he’s been seen by prison doctors at least
10 times in 3 months, so he is not alleging that he was
denied medical care. At best, he alleges a disagreement
with medical professionals about his needs. This does not
state a cognizable Eighth Amendment claim under the
deliberate indifference standard of Estelle v. Gamble, 429
U.S. 97 (1976). Ciarpaglini has simply pled himself out of
court by saying too much. See Jackson v. Marion County, 66
F.3d 151 (7th Cir. 1995). Because we can affirm a district
6 No. 01-2657
court’s dismissal of a case on any adequate ground found in
the record, Cushing v. City of Chicago, 3 F.3d 1156 (7th Cir.
1993), and because Ciarpaglini has failed to state a claim on
which relief can be granted, the judgment of the district
court dismissing his case is AFFIRMED.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—12-11-03