Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Winston v. Correct Care Solution

United States District Court, E.D. Arkansas, Pine Bluff Division

September 13, 2018

CHARLES A. WINSTON ADC #084733 PLAINTIFF
v.
CORRECT CARE SOLUTION, 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 Charles A. Winston (“Winston”) filed a complaint pursuant to 42 U.S.C. § 1983 on August 22, 2018. See Doc. No. 1. Winston later filed an application to proceed in forma pauperis on September 7, 2018. See Doc. No. 2. Winston is an inmate at the Maximum Security Unit at Tucker, Arkansas in the Arkansas Department of Correction (“ADC”).

         Winston alleges that on August 2, 2015, he was brutally assaulted by multiple gang members, and was rushed to the Emergency Room by ambulance. Doc. No. 1 at 4. Winston had surgery on August 18, 2015, as a result of his injuries. Id. Winston claims Wannetta Clowers (“Clowers”), an APN for Correct Care Solutions (“CCS”), failed to administer appropriate pain medication(s) to him after surgery. Id. Winston alleges Clowers allowed him to suffer in pain, showing deliberate indifference to his serious medical needs. Id. Winston further alleges CCS has an unwritten policy whereby its employees are instructed to take away or withhold inmates' prescribed medications, orthopedic appliances, and medical treatment prescribed by specialists. Doc. No. 1 at 5. Winston alleges that CCS has been deliberately indifferent to his serious medical needs. Id.

         On August 8, 2016, Winston filed a complaint in Winston v. Clowers et al., No. 5:16-cv-00252-KGB. See No. 5:16-cv-00252, Doc. No. 2. In that case, Winston conceded that he was a three-striker under the Prison Litigation Reform Act (“PLRA”), [1] but argued that he should be allowed to proceed without paying a filing fee because he was in “present danger.” Id. at 4. Winston alleged that he was in imminent danger because he had ongoing medical issues and was being denied adequate medical care. Id. at 7. In the same case, Winston also pled many of the same facts, and made many of the same allegations, as he does in this case. Winston alleged that he was brutally assaulted on June 15, 2013, and again on August 2, 2015. See No. 5:16-cv-00252, Doc. No. 2 at 5. Just as in this case, much of Winston's 2016 complaint recounts the alleged failure of medical personnel, including Clowers, to provide care for him in the immediate aftermath of the August 2, 2015 assault. Id. at 5-7.

         Due to Winston's status as a three-striker, [2] the Court in the 2016 case decided that many of his claims were improper as they did not place him in imminent danger at the time he filed the lawsuit in 2016. On motion of the defendants, [3] the Court severed from the 2016 lawsuit any claims for events which allegedly occurred in 2015.[4] Thus, he was not permitted to proceed with the allegations concerning events that took place in 2015. Rather, Winston was only permitted to proceed with the alleged ongoing conduct of the defendants.[5] See Doc. Nos. 62 & 75.

         As previously noted, Winston is a three-striker under the PLRA. As a three-striker, Winston is not able to proceed in forma pauperis unless he can demonstrate that he is was in imminent danger of serious physical injury when he filed his complaint. 28 U.S.C. § 1915(g); Ashley v. Dilworth, 147 F.3d 715, 717 (8th Cir. 1998). The United States Court of Appeals for the Eight 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) (holding that the imminent danger exception did not apply when a prisoner was forced to work outside in extreme weather conditions that did not result in any serious physical injuries). See also Ashley, 147 F.3d at 717 (holding that the imminent danger exception applied when prison officials continued to place a prisoner near his enemies who had previously stabbed him); McAlphin v. Toney, 281 F.3d 709, 710-11 (8th Cir. 2002) (holding that the imminent danger exception applied where inmate alleged deliberate indifference to his serious medical needs that resulted in five tooth extractions and a spreading mouth infection requiring two additional extractions).

         The Court finds that the facts alleged in this case do not demonstrate that Winston was in imminent danger of serious physical injury when he commenced this action. In fact, the allegations of the complaint instead center on Clowers' alleged failure to administer pain medication to Winston in the aftermath of the August 2015 assault. See Doc. No. 1 at 4-5. Winston's complaint makes no allegations concerning ongoing events. Because 2 at ¶¶ 16-20.”). Winston has not alleged sufficient facts to show that he is in imminent danger of serious physical injury, his motion to proceed in forma pauperis should be denied and his complaint dismissed without prejudice.

         IT IS THEREFORE RECOMMENDED THAT:

1. Winston's motion for leave to proceed in forma pauperis (Doc. No. 2) be DENIED, and this case be DISMISSED WITHOUT PREJUDICE.
2. Winston be given thirty days to reopen the case by paying the $400 filing and administrative fees in full and filing a Motion to Reopen.

---------


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.