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Tucker v. Kandulski

United States District Court, E.D. Michigan, Southern Division

August 11, 2015

L. TUCKER, Plaintiff,
v.
KANDULSKI, et al., Defendants.

MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION ON PLAINTIFF'S MOTION FOR PRELIMINARY INJUNCTION AND TEMPORARY RESTRAINING ORDER (Doc. 6) AND MOTION TO ORDER MDOC TO PRINT COPIES (Doc. 11).

PATRICIA T. MORRIS, Magistrate Judge.

I. RECOMMENDATION

For the reasons set forth below, IT IS RECOMMENDED that Plaintiff's motions (Docs. 6, 11) be DENIED, his complaint (Doc. 1) be DISMISSED WITHOUT PREJUDICE, and his in forma pauperis status be REVOKED.

II. REPORT

A. Introduction

Plaintiff L. T. Tucker, Jr., also known as Kitwana Omari Mbwana, is a state prisoner who is currently incarcerated by the Michigan Department of Corrections ("MDOC"). On March 23, 2015, Plaintiff filed a pro se civil rights complaint alleging that his constitutional rights were violated through the denial of necessary medical care. (Doc. 1). Plaintiff names five Defendants, Dr. Gerlach, Spitter, Behler, members of the pain management committee, Kandulski, three John/Jane Doe defendants and Corizon, Inc., which provides the MDOC with medical services on a contractual basis. (Id. ). Plaintiff alleges that Defendants denied him necessary medication to treat the pain he experiences as a result of his "diabetic-peripheral neuropathy (nerve damage') to the feet, legs, etc." (Id. at Page ID 2, 17-21). Plaintiff's request to proceed in forma pauperis was granted on May 14, 2015 (Doc. 7). On July 20, 2015, U.S. District Judge Gershwin A. Drain referred Plaintiff's instant motions to the undersigned magistrate judge. (Doc. 14).

B. Background and Governing Law

On May 4, 2015, Plaintiff moved for a temporary restraining order and preliminary injunction "to ensure plaintiff Tucker, received proper medical care." (Doc. 6, Ex. 1 at PgID 1). Specifically, Plaintiff notes that he "is experiencing continued pain, bleeding, swelling, redness, inflammation, various ulcer eroded sores to the toes [on his] right foot, and inflammation, limited motion and cannot walk properly." (Id. at 2). Plaintiff characterizes this as the "deni[al of] care for a serious chronic illness contrary to an [sic] need for medical care." (Id. at 3). He further asserts that he "may never walk normally again" if he does not receive necessary medical care ( id. at 4), and may also require amputation of his lower extremities ( id. at 5).

On June 12, 2015, Plaintiff filed an additional motion requesting that the Court order the MDOC to "direct[ the] Michigan Department of Corrections to make [7] seven copies of the herein complaint and exhibits to be serve [sic] on defendants's [sic]. (Doc. 11 at 1). In that motion, Plaintiff asserts that "he don't [sic] know if the court is going to issue a [sic] order directing Michigan department of corrections, to allow plaintiff Tucker, to be provided with additional copies of the complaint, " though he does not establish whether or why he is unable to acquire such copies himself. (Id. at 3).

However, the Court finds that it need not consider these motions, because the "Three Strikes" provision of 28 U.S.C. ยง 1915(g) bars Tucker's action. That statute provides that a prisoner may not

bring a civil action or appeal a judgment in a civil action or proceeding under this section 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.

Id. Plaintiff admits that he "falls under the three-strike rule due to his having filed more than three [non-meritorious] civil actions in federal courts, " but contends that he is exempted from this restriction because he is "under immediate danger of serious physical injury, " in that he may experience the following harm if he is not granted relief:

(1) The worsening of extreme and intense continuous pain to his toes in his right foot and right leg, (2) various ulcer eroded sores to the toes in his right foot, (3) swelling, redness, infection, and spontaneous bleeding to his toes in [sic] his right foot, (4) deterioration from lack of treatment for the serious condition of having diabetic peripheral neuropathy ("nerve damage"), (5) being more susceptible to prolong certain serious illnesses such as the continuous extreme pain that Plaintiff Tucker has been experiencing for the last two plus years, (6) sleep deprivation ...

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