United States District Court, E.D. Arkansas, Pine Bluff Division
CHARLES A. WINSTON ADC #084733 PLAINTIFF
CORRECT CARE SOLUTION, et al. DEFENDANTS
PROPOSED FINDINGS AND RECOMMENDATION
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
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”).
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.
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”),  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.
Winston's status as a three-striker,  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,
Court severed from the 2016 lawsuit any claims for events
which allegedly occurred in 2015. 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. See Doc. Nos. 62 & 75.
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
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
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.