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Pennington v. Drumond

United States District Court, E.D. Arkansas, Eastern Division

April 16, 2018

FREDERICK PENNINGTON JR. ADC #071305 PLAINTIFF
v.
PATRICK DRUMOND, et al. DEFENDANTS

          PROPOSED FINDINGS AND RECOMMENDATION

         INSTRUCTIONS

         The following proposed Findings and Recommendation have been sent to Chief United States District Judge Brian S. Miller. You may file written objections to all or part of this Recommendation. If you do so, those objections must: (1) specifically explain the factual and/or legal basis for your objection, and (2) be received by the Clerk of this Court within fourteen (14) days of this Recommendation. By not objecting, you may waive the right to appeal questions of fact.

         DISPOSITION

         Plaintiff Frederick Pennington Jr. filed a complaint pursuant to 42 U.S.C. § 1983 and an application to proceed in forma pauperis on March 12, 2018 (Doc. Nos. 1 & 2). Pennington has also filed a motion for preliminary injunction and temporary restraining order (Doc. No. 8). This recommended disposition concerns Pennington's application to proceed in forma pauperis, his complaint, and his motion for a preliminary injunction and temporary restraining order.

         Pennington is an inmate at the East Arkansas Regional Unit in the Arkansas Department of Correction (“ADC”) and a “three-striker” under the three-strikes provision of the Prison Litigation Reform Act (“PLRA”). The PLRA's three-strikes provision states that a prisoner cannot proceed in forma pauperis in a civil action if:

the prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility, 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, unless the prisoner is under imminent danger of serious physical injury.

28 U.S.C. § 1915(g) (emphasis added). The U.S. Court of Appeals for the Eighth Circuit has explicitly upheld the constitutionality of the three-strikes provision. See Higgins v. Carpenter, 258 F.3d 797 (8th Cir. 2001). The following cases filed by Pennington are the three most recent cases dismissed for failure to state a claim: Pennington v. Harmon, et al., No. 5:01-cv-00034-BRW (E.D. Ark. 2001); Pennington v. Pryor, et al., No. 4:00-cv-00748-BRW (E.D. Ark. 2000); and Pennington v. Brownlee, et al., No. 5:99-cv-00184-SWW (E.D. Ark. 1999).[1]

         As a three-striker, Pennington must show that he was in imminent danger of serious physical injury at the time he filed the complaint in order to proceed in forma pauperis. 28 U.S.C. § 1915(g); Ashley v. Dilworth, 147 F.3d 715, 717 (8th Cir. 1998). The Eighth Circuit has clarified that the imminent danger exception applies only when there is a genuine risk of an “ongoing serious physical injury.” Martin v. Shelton, 319 F.3d 1048, 1050 (8th Cir. 2003). Pennington alleges he is in imminent danger of serious physical injury because he was diagnosed with hepatitis C and has not received a biopsy. Doc. No. 2. Pennington was instructed to file an amended complaint describing why he believes he is not receiving appropriate treatment for hepatitis C and how that puts him in imminent danger of serious physical injury. Doc. No. 5.

         Pennington filed a motion to amend complaint and a supporting brief on March 15, 2018 (Doc. Nos. 6 & 7). On March 28, 2018, the Court entered an order granting Pennington's motion to amend complaint and treating the supporting brief as Pennington's amended complaint (Doc. No. 10). Pennington was instructed to notify the Court within 14 days if he did not intend his brief to be treated as his amended complaint. Pennington filed a notice on April 11, 2018, stating that he agreed that his brief should constitute his amended complaint (Doc. No. 12).

         Having reviewed Pennington's amended complaint (Doc. No. 11), the Court finds that Pennington fails to allege sufficient facts to show he is in imminent danger of serious physical injury. Moreover, Pennington fails to allege sufficient facts to support a claim for relief. An action fails to state a claim upon which relief can be granted if it does not plead sufficient facts to “raise a right to relief above the speculative level” or “to state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). Although the Court must give a pro se complaint the benefit of a liberal construction, Estelle v. Gamble, 429 U.S. 97, 106 (1976), the Court need not weigh all factual allegations in favor of the plaintiff if the facts alleged are clearly baseless. Denton v. Hernandez, 504 U.S. 25, 32-33 (1992) (explaining that clearly baseless facts include those that are fanciful, fantastic, and delusional). See also Glick v. Henderson, 855 F.2d 536, 539 (8th Cir. 1988) (affirming dismissal of complaint based on unsubstantiated fears and ignorance).

         Pennington believes he is in need of hepatitis C treatment. He explains that he was previously treated and cured of hepatitis C following a lawsuit he filed in 2006. Doc. No. 11 at 1-2. Pennington states that doctors and nurses have told him he has hepatitis C. Id. at 3. He claims he believes he is in need of treatment again because the devil made him drink water contaminated with fecal matter. Id. at 3-4. Pennington further states that Dr. Drummond told him he needed treatment again but he refused, and Dr. Drummond then said, “Ok. It's stable.” Id. at 4. Pennington also alleges that he was told in response to a grievance that he did not meet the criteria for hepatitis C treatment at that time. Id. at 6.

         Pennington also claims that he was attacked by the devil who made him drop his soap in a sink eight times after HIV positive inmates had spit into the sink. Id. at 4-5. Pennington alleges that the spit on the soap made his hands break out and bleed. Id. Pennington believes he has a staph infection and claims Dr. Drummond and Dr. Campbell will not prescribe oral antibiotics or Truvada but instead prescribed Triamcinolone 0.1% cream, Absorbase ointment, Bicintracin [sic] ointment, and an antibiotic ointment. Id. at 5-8 & 14-16.

         The remainder of Pennington's amended complaint concerns potential financial resources that could be used to pay his filing fee. Id. at 8-13.

         Pennington does not describe sufficient facts to support his claims. He does not describe any symptoms (other than some gas) that lead him to believe he has an active hepatitis C infection in need of treatment. Pennington does not explain how he knows certain inmates are HIV positive, or why he believes that he would acquire a staph infection from handling soap with their spit on it. He does not claim ...


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