United States District Court, W.D. Arkansas, Hot Springs Division
BILLY J. KAIN, JR. PLAINTIFF
CORRECT CARE SOLUTIONS, et. al. DEFENDANTS
MAGISTRATE JUDGE'S REPORT AND
BARRY A. BRYANT UNITED STATES MAGISTRATE JUDGE
a civil rights action filed by the Plaintiff pursuant to 42
U.S.C. § 1983. Pursuant to the provisions of 28 U.S.C.
§ 636(b)(1) and (3)(2011), the Honorable Susan O.
Hickey, United States District Judge, referred this case to
the undersigned for the purpose of making a Report and
Recommendation. Currently before the Court is a Motion to
Revoke Plaintiff's IFP status by Defendants Beasley,
Correct Care Solutions, Gifford, Goldman, Stieve, and Vowell.
(ECF No. 55).
statute, 28 U.S.C. § 1915, was amended by the Prison
Litigation Reform Act (PLRA). A provision, § 1915(g),
was added that limits the ability of a prisoner, who has
filed at least three claims that have been dismissed as
frivolous, malicious, or for failure to state a claim, to
obtain IFP status. Specifically, § 1915(g) provides
In no event shall a prisoner bring a civil action . . . under
this section if the prisoner has, on three or more prior
occasions, while incarcerated or detained in any facility,
brought an action . . . 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
28 U.S.C. § 1915(g).
filed his first Complaint for this case in the Eastern
District of Arkansas on March 13, 2017. (ECF No. 2). He filed
an Amended Complaint on April 5, 2017. (ECF No. 5). The case
was transferred to this District on April 6, 2017. (ECF No.
7). In his Amended Complaint, Plaintiff alleged he was
diagnosed with Chrohn's disease, an inflammatory bowel
condition, in 1988. (ECF No. 5 at 6). He alleged Defendant
Vowell, a physician employed by Correct Care Solutions, told
him he did not have Chrohn's disease and terminated his
corresponding prescription for dicyclomine on January 19,
2017. (ECF No. 5 at 7-9). He further alleged he was being
denied a knee replacement for his right knee. (ECF No. 5 at
on the allegations on the Amended Complaint, Plaintiff was
granted IFP status on May 17, 2017. (ECF No. 12). At the time
of the grant, Plaintiff had at least three prior actions
which qualified as strikes against him. See Kain v.
Banks, No. 2:05CV00019JMM (E.D. Ark. Feb. 10, 2005)
(citing seven prior cases by Plaintiff which had been
dismissed as frivolous and for failure to state a claim).
(ECF No. 6). Thus, as a three-striker, Plaintiff could
proceed IFP only if he had sufficiently alleged he was in
imminent danger of physical harm. Out of an abundance of
caution, the Court permitted him to proceed IFP due to his
allegation that he had Chrohn's disease, an inflammatory
bowel condition, and his medication for it (dicyclomine) had
been abruptly terminated. (ECF No. 12).
was subsequently permitted to file a Second Amended Complaint
(ECF No. 17), and was then directed to file a Third Amended
Complaint to cure deficiencies in the Second Amended
Complaint. (ECF No. 20). Plaintiff did so on September 5,
2017. (ECF No. 22). In his Third Amended Complaint, Plaintiff
repeated the allegations that he had Chrohn's disease,
and, as a result of being denied the medication dicyclomine,
he was in pain and his life was “endangered.”
(ECF No. 22 at 6). Plaintiff also alleged he was being denied
knee replacement surgery for his right knee and as a result
he suffered “excruciating pain trying to walk on
it.” (ECF No. 22 at 6).
November 16, 2017, the undersigned entered a Report and
Recommendation to address Plaintiff's several motions for
preliminary injunctive relief concerning his right knee and
Chrohn's disease. The Report recommended denial of the
Motions. (ECF No. 44). Relevant to the IFP analysis, the
Report noted that Plaintiff had not alleged that he received
any of the classes of drugs which are used for moderate to
severe cases of Chrohn's. Additionally, it noted that
Chrohn's disease and osteoarthritis of the knee are, by
medical definition, chronic rather than acute conditions,
which did not merit the extreme remedy of injunctive relief.
(ECF No. 44 at 5-6). Plaintiff objected on December 1, 2017.
(ECF No. 49). On December 18, 2017, the Honorable Susan O.
Hickey entered an Order adopting the Report and
Recommendation and denying Plaintiff's Motions. (ECF No.
December 7, 2018, in response to the Report and
Recommendation's conclusion that Plaintiff's claims
did not qualify for injunctive relief, Defendants Beasley,
Correct Care Solutions, Gifford, Goldman, Stieve, and Vowell
filed a Motion to Revoke Plaintiff's IFP status in this
case. (ECF No. 55). Defendants noted that Plaintiff had
originally filed this case on March 13, 2017, in the Eastern
District of Arkansas before it was transferred to this
District. They note Plaintiff subsequently filed a separate
action in the Eastern District concerning his Crohn's
disease on May 1, 2017. (ECF No. 55 at 2). Defendants state
he was denied IFP status in the Eastern District case because
he had not plead sufficient facts to allege he was in
imminent danger of serious physical injury.
Court has now reviewed the Eastern District case referenced
by the Defendants: Kain v. Correct Care Solutions,
No. 1:17-cv-00031-DPM (E.D. Ark. July 17, 2017). Defendants
correctly argue that Plaintiff was denied IFP
status. In his Complaint for this case, Plaintiff
alleges the Defendants were “issuing Petitioner
medication (Dicyclomine) for Crohn's Disease he
doesn't have.” He further alleges the
dicyclomine was “causing damage to Petitioners body or
injuring it.” Thus, in the Eastern District case, which
he filed approximately six weeks after the initial Complaint
in the case before this Court, Plaintiff alleges he does
not have Crohn's disease, is being forced to
take dicyclomine, and the forced administration of
dicyclomine is causing him bodily damage. (ECF No. 6).
April 30, 2018, Plaintiff filed another Motion for
Preliminary Injunction. (ECF No. 83). In this Motion,
Plaintiff alleges that on April 12, 2018, “while in the
Gym playing basketball” his knee “popped out of
place” and he fell. (ECF No. 83 at 2). Thus, despite
Plaintiff's earlier allegations of suffering
“excruciating pain” merely in attempting to walk
on his right knee, and of being in pain from the denial of
dicyclomine for his Chrohn's disease, which endangers his
life, he then states he was sufficiently fit to play
basketball on April 12, 2018.
on whether one utilizes Plaintiff's allegations in this
case or in his Eastern District case, Plaintiff either does
not have Chrohn's disease or suffers only from a mild
case. Plaintiff is clearly not in imminent danger of physical
harm from the denial of dicyclomine for his mild or
nonexistent Chrohn's disease. Nor is he suffering
incapacitating pain from his right knee, as he alleged he
felt physically well enough to play basketball. It is,
therefore, evident that the Court's caution in granting
IFP status was misplaced, and Plaintiff's IFP status was
I recommend the Motion to Revoke Plaintiff's IFP status
by Defendants Beasley, Correct Care Solutions, Gifford,
Goldman, Stieve, and Vowell (ECF No. 55) be