Bond v. Aguinaldo

• Decision Date: 31 October 2002
• Docket Number: No. 02 C 5357.,02 C 5357.
• Citation: 228 F.Supp.2d 918
• Parties: Jackey L. BOND, Plaintiff, v. Dr. AGUINALDO, et al., Defendants.
• Court: U.S. District Court — Northern District of Illinois

Page 918

228 F.Supp.2d 918

Jackey L. BOND, Plaintiff, v. Dr. AGUINALDO, et al., Defendants.

No. 02 C 5357.

United States District Court, N.D. Illinois, Eastern Division.

October 31, 2002.

Jackey Lee Bond, Joliet, IL, pro se.

IDOC Chief of Legal Services, Illinois Dept. of Correction, Chicago, IL, for defendants.

MEMORANDUM OPINION AND ORDER

BUCKLO, District Judge.

Plaintiff Jackey L. Bond, a prisoner at Stateville Correctional Center, filed suit under 42 U.S.C. § 1983, alleging that neglect of his medical conditions amounts to cruel and unusual punishment in violation of the Eighth Amendment. Bond names as defendants medical and administrative officials at Stateville and Pinckneyville correctional centers.

Bond seeks leave to proceed without prepayment of the filing fee. Court records show, however, that Bond has filed three federal actions that have been dismissed for failure to state a claim upon which relief may be granted.¹ Under the "three strikes" rule enacted by the Prison Litigation Reform Act (PLRA), Bond may not proceed without prepayment of the filing fee unless he "is under imminent danger of serious physical injury." 28 U.S.C. § 1915(g). As Bond alleges that his medical problems are serious and ongoing and causing him severe pain, the court finds he meets this standard for pleading purposes, and grants his renewed motion for leave to proceed without prepayment. The court will enter a separate order assessing the initial partial payment of the filing fee required by 28 U.S.C. § 1915(b)(1) and ordering installment payments as required by 28 U.S.C. § 1915(b)(2).

Only Bond's claim that he is presently being denied medical care permits him to invoke the "imminent danger" exception to the "three strikes" rule. Clearly, "[b]y using the term "imminent," Congress indicated that it wanted to include a safety valve for the "three strikes" rule to prevent impending harms, not those harms that had already occurred." Abdul-Akbar v. McKelvie, 239 F.3d 307, 315 (3rd Cir. 2001). Nevertheless, the language of the exception does not state that only those defendants directly responsible for the "imminent danger of serious physical injury" may be sued in a suit allowed to proceed under the exception, and the court has found no authority so holding.

All of Bond's claims address the same conditions for which he is presently being denied care, and the court accordingly finds that Bond may proceed not only against those defendants responsible for his present treatment at Stateville, but against those responsible for his treatment during his earlier sojourns at both Stateville and Pinckneyville as well. If defendants contend that the scope of this suit should be limited to Bond's present medical needs, they may move the court, citing relevant authority.

Under 28 U.S.C. § 1915A, another provision of the PLRA, the court is required to review complaints filed by prisoners against governmental entities or their officers or employees and dismiss any portion of the complaint it finds frivolous, malicious, fails to state a claim upon which relief may be granted, or seeks monetary relief from a defendant immune from such relief. In determining whether the complaint states a claim upon which relief may be granted, the court applies the standard employed in deciding a motion to dismiss under Rule 12(b)(6), taking all well-pleaded allegations of the complaint as true and viewing them in the light most favorable to the plaintiff. Zimmerman v. Tribble, 226 F.3d 568, 571 (7th Cir.2000).

Bond alleges that when he was transferred to Stateville July 7, 1999, he suffered from back pain but was told by defendant Dr. Aguinaldo that there was nothing wrong with him. Sometime later he developed hoarseness, but Dr. Aguinaldo only told him to stop talking. Bond states that in October of 2000 he was seen by an E.N.T. (ear, nose and throat) specialist who found cysts on his vocal cords that he believed to be caused by acid reflux from Bond's stomach to his esophagus. Bond was also seen by a "voice specialist" who told him that until the acid reflux problem was solved he could do nothing for him. Dr. Joseph Smith, the medical director, and Barbara Miller, the health-care unit administrator, ignored Bond's requests for treatment of acid reflux as recommended by the E.N.T. specialist. Bond's grievances were denied by Stateville's grievance officer, two successive assistant wardens, and the warden, and the denial was upheld by the Director of the Illinois Department of Corrections.

On February 7, 2001, Bond was transferred to Pinckneyville Correctional Center, where Drs. Garcia and Doughty also refused to carry out the treatment recommended by the specialist. As at Stateville, the health-care unit administrator, Christine Mitchell, did not intervene, and Bond's grievances were denied by grievance officer Wilbur Gene Pursell, Assistant Warden Julius Flagg, and Warden Guy D. Pierce. Again, IDOC Director Snyder...