United States District Court, D. Kansas
PATRICK C. LYNN, Plaintiff,
v.
CHARLIE WILLNAUER, et al., Defendants.
ORDER
JULIE
ROBINSON Chief U.S. District Judge
Plaintiff,
Patrick C. Lynn, brings this pro se civil rights case under
42 U.S.C. § 1983. Plaintiff is incarcerated at the
Lansing Correctional Facility in Lansing, Kansas
(“LCF”). Plaintiff has filed a motion for leave
to proceed in forma pauperis (Doc. 4), and a Motion for
Filing Fee Waiver Based on Imminent Dangers of Serious
Physical Injury (Doc. 3-1).
Plaintiff
is subject to the “three-strikes” provision under
28 U.S.C. § 1915(g). Court records fully establish that
Plaintiff “has, on 3 or more prior occasions, while
incarcerated . . ., 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.”[1] Accordingly, he may proceed in
forma pauperis only if he establishes a threat of imminent
danger of serious physical injury. Id. The Court has
examined the Complaint (Doc. 1) and Plaintiff's Motion
for Filing Fee Waiver Based on Imminent Dangers of Serious
Physical Injury (Doc. 3-1) and finds no showing of imminent
danger of serious physical injury.
As
documented by the Court in Plaintiff's previous cases,
Plaintiff is a highly litigious Kansas inmate. See Lynn
v. Patty, No. 16-3254-JTM, Doc. 12 (Feb. 28, 2017);
Lynn v. Kansas, No. 16-3089-JTM, Doc. 18 (Aug. 5,
2016). Plaintiff currently has three pending cases in this
Court and another case pending on appeal. See Lynn v.
Cline, No. 19-3003-CM (D. Kan.); Lynn v. Price,
No. 19-3125-DDC (D. Kan.); and Lynn v. McCurrie, No.
17-3041-JWB-KGG (D. Kan.) (on appeal). Plaintiff filed the
instant case on July 2, 2019, alleging inadequate medical
care at LCF in violation of the Eighth Amendment. He also
alleges state law claims for medical malpractice and criminal
mistreatment of a confined person.
Plaintiff
alleges that he has a heart condition and has had multiple
heart attacks following his quadruple heart bypass operation
on July 3, 2014, and “has been repeatedly hospitalized
for cardiac events & has multiple heart stents.”
(Doc. 1, at 3.) Plaintiff alleges that in August of 2018, he
received a Troponin blood test during a month of calm to
establish his base Troponin level at 0.002. On January 24,
2019, and March 8, 2019, Plaintiff had two cardiac events
while housed at the Hutchinson Correctional Facility in
Hutchinson, Kansas (“HCF”), and was taken to the
hospital by ambulance and admitted for several days based on
his Troponin tests. One Troponin test registered at 0.116,
but Plaintiff cannot recall the results of the second test.
On May
23, 2019, Plaintiff was transferred from HCF to LCF, and his
legal and personal property was “maliciously
ransacked/compromised/& criminally destroyed” by
LCF staff, causing Plaintiff to suffer “continuous
distress which dramatically affected his physical &
psychological health.” (Doc. 1, at 3-4.) Plaintiff
alleges that on May 25, 2019, he suffered severe heart attack
symptoms and a Troponin test was ordered but took over five
hours to be picked up by the courier and taken to the lab at
St. John's Hospital three miles away. Plaintiff alleges
that during the May 25th event, he was taken to the Clinic
ER, was denied aspirin, and the nurse eventually directed
security staff to return Plaintiff back to segregation. When
the results of Plaintiff's Troponin test came back at
0.116, Dr. Monir ordered Plaintiff rushed to a local hospital
for cardiac care, and he was discharged three or four days
later.
Plaintiff
alleges that on June 22, 2019, Plaintiff suffered severe
heart attack symptoms and Dr. Monir ordered a Troponin test
which took over one hour and came back at 0.135. Dr. Monir
directed the RN to call EMTs and transport Plaintiff to KU
Medical Center where he was admitted for four days. On June
25, 2019, shortly after his return to LCF, Plaintiff was
returned to the Clinic ER due to chest pains. He was given a
Troponin test which came back at 0.116, and Dr. Harris
ordered Plaintiff to be placed in the infirmary, with
Troponin tests ordered every twelve hours. Plaintiff alleges
that he was denied pain medication and was discharged to
segregation on June 26, 2019. Plaintiff continued to have
chest pains that day, was returned to the infirmary on June
26th, and a Troponin test was ordered and came back at 0.127.
Plaintiff was refused pain medication and was denied transfer
to a hospital. On June 27th, Plaintiff demanded to be taken
to the hospital or returned to segregation, and he was placed
in a special “lockbox security infirmary cell”
around noontime. Plaintiff was given another Troponin test
which came back at 0.124, but he was denied pain medication
and denied transfer to a hospital. Plaintiff was told by an
RN that Dr. Harris refused to send Plaintiff to the hospital
again because it cost too much to keep sending him to the
hospital.
Plaintiff
alleges that the denial of pain medication and the denial of
an emergency transport to the hospital violated his Eighth
Amendment rights. Plaintiff also alleges that medical staff
should be required to transport Troponin tests to the labs if
the courier does not pick up the sample within thirty
minutes. Plaintiff alleges that he is in imminent danger of
suffering another heart attack or a crippling stroke.
In his
motion for filing fee waiver (Doc. 3-1) Plaintiff notes that
since his transfer to LCF on May 23, 2019, he has been
transported to St. John's Hospital (from May 26 to May
28), to KU Medical Center (from June 22 to June 25), and was
admitted to the LCF infirmary from June 25 to June 28, 2019.
Plaintiff alleges that he has been rescheduled for three
major operations at KU Medical Center, including an aortic
bypass. Plaintiff alleges that his “keep on
person” heart medications have been cancelled and that
he had to take several nitro pills while writing the
complaint in this case.
These
allegations fail to contain plausible and credible
allegations of imminent danger of serious physical harm.
“To meet the only exception to the prepayment
requirement, a prisoner who has accrued three strikes must
make ‘specific, credible allegations of imminent danger
of serious physical harm.'” Davis v. GEO Group
Corr., 696 Fed.Appx. 851, 854 (10th Cir. May 23, 2017)
(unpublished) (quoting Hafed v. Fed. Bureau of
Prisons, 635 F.3d 1172, 1179 (10th Cir. 2011)). The
prisoner “should identify at least the general nature
of the serious physical injury he asserts is imminent,
” and “should make a specific reference as to
which of the defendants may have denied him what medication
or treatment for what ailment on what occasion.”
Id. (quoting Hafed, 635 F.3d at 1180).
“Vague and utterly conclusory assertions are
insufficient.” Id.
The
harm must be imminent or occurring at the time the complaint
is filed, “allegations of past harm do not
suffice.” Id. (citations omitted). The
“imminent danger” exception has a temporal
limitation-[t]he exception is construed narrowly and
available only ‘for genuine emergencies,' where
‘time is pressing' and ‘a threat . . . is
real and proximate.'” Lynn v. Roberts, No.
11-3073-JAR, 2011 WL 3667171, at *2 (D. Kan. Aug. 22, 2011)
(citation omitted). “Congress included an exception to
the ‘three strikes' rule for those cases in which
it appears that judicial action is needed as soon as possible
to prevent serious physical injuries from occurring in the
meantime.'” Id. (citation omitted).
“[A]llegations of past misconduct of defendants and
even of past injury to plaintiff are insufficient to allow a
three-striker to proceed IFP.” Id. (citation
omitted). “[E]ven specific examples of being denied
health care in the past are not sufficient to satisfy the
imminent danger exception under § 1915(g).”
Id. at *3. (citation omitted). The allegations of
imminent physical danger must be plausible and credible.
Id. (citations omitted).
Plaintiff
believes the Troponin test results are taking too long and
that he should be transported to the hospital each time his
results come back elevated. Thus, Plaintiff disagrees with
the healthcare provider's course of treatment, but
acknowledges that he is receiving medical care. Plaintiff
acknowledges that he received quadruple bypass surgery in the
past, has received several heart stents, and “has been
repeatedly hospitalized for cardiac events.” Plaintiff
was housed at LCF for forty days prior to filing his
Complaint, and he acknowledges that during that time he spent
time in the Clinic ER and infirmary, and was transported to a
hospital on two occasions, each resulting in multiple-day
stays in the hospital. Despite not being allowed to keep his
medication on his person, he acknowledges that he had access
to several nitro tablets while drafting his complaint in this
case. He also acknowledges that he is scheduled for three
upcoming operations, including an aortic bypass surgery.
“Numerous
courts have concluded that where a three-striker inmate's
allegations reflect that he has had access to medical care
and simply disagrees with the opinions of the medical
personnel who have examined him, he fails to satisfy the
imminent danger requirement of 28 U.S.C. §
1915(g).” Showalter v. Lee, No. 7:15CV00106,
2015 WL 1800478, at *3 (W.D. Va. April 16, 2015) (citing
Joyner v. Fish, No. 7:08CV00359, 2008 WL 2646691
(W.D. Va. July 3, 2008) (imminent danger not demonstrated
when plaintiff had been given thorough medical treatment,
never been denied doctor visit, and been advised to take
medication but disagreed with opinions of medical
professionals); Renoir v. Mullins, No. 7:06CV00474,
2006 WL 2375624 (W.D. Va. Aug. 15, 2006) (finding
disagreement with diagnosis and prescribed treatment is not
imminent danger of serious physical harm); Brown v.
Beard, 492 F.Supp.2d 474, 478 (E.D. Pa. June 27, 2007)
(prisoner was not in imminent danger when disputing the
quality of treatment he was receiving for various medical
conditions); Watley v. Escobar, No. 4:09CV3003, 2010
WL 1643801 (N.D. Ohio April 22, 2010) (no imminent danger
where plaintiff received medical treatment but disagreed with
conclusions of medical personnel over pain medication and
medical procedures); James v. Hunter, No.
08-0729-CG-B, 2009 WL 3052131, at *3 (S.D. Ala. Sept. 18,
2009) (disagreement with medical treatment provided does not
satisfy § 1915(g) exception); Baugh v. Missouri
Dep't of Corrections, No. 4:08CV01517 ERW, 2008 WL
4831783, at *1, n. 1 (E.D. Mo. Nov. 5, 2008) (no imminent
danger where plaintiff admitted he was offered treatment for
medical conditions but disagreed with offered treatment)).
In
Van Dyke v. Pilland, plaintiff argued that
defendants were either giving him inadequate doses, or
refusing doses altogether, of certain medications that he
needed for high cholesterol and migraines. Van Dyke v.
Pilland, No. 1:12-cv-129-RJC, 2013 WL 2632605, at n*3
(W.D. N.C. June 12, 2013). Plaintiff alleged that because he
was not receiving the medications as needed, he was at risk
of suffering a heart attack or stroke, both of which
“run in his family.” Id. The court found
that plaintiff's ...