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Perry v. Boston Scientific Family

United States District Court, Eighth Circuit

December 5, 2013

DONALD PERRY, Plaintiff,

Donald Perry, No. 050031, D-1113-L, Martin Correctional Institution, pro se.


JOHN R. TUNHEIM, District Judge.

Plaintiff Donald Perry, who is proceeding pro se, brings the present action against Boston Scientific Family, Boston Scientific Corporation, Ken Stein, M.D., Boston Scientific Cardiac Rhythm Management, and "any future defendants" (collectively, "Boston Scientific"), alleging that Boston Scientific manufactured a defective pacemaker that is causing Perry serious health problems. (Compl., Mar. 29, 2013, Docket No. 1.) The matter is before the Court on Perry's appeal from an order of United States Magistrate Judge Tony N. Leung that denied Perry's multiple requests for leave to proceed in forma pauperis ("IFP") and his request for appointment of counsel. ("June Order, " June 24, 2013, Docket No. 12.) Having reviewed Perry's various filings, the 26&MM Court will affirm the Magistrate Judge's order as to Perry's applications for IFP status and appointment of counsel. The Court has also reviewed Perry's proposed amended complaint, which purports to advance a 42 U.S.C. § 1983 claim against Boston Scientific, and will deny the motion because the proposed amendment lacks merit.


Perry is an inmate at Martin Correctional Institution in Indiantown, Florida. ( See Compl. at 3.) In August 2010, Perry underwent a third open-heart surgery, during which doctors installed a pacemaker that was allegedly designed and manufactured by Boston Scientific. ( Id. ¶¶ 2-4.) Perry now claims to suffer from a host of medical problems that he believes are caused by the pacemaker.[1] ( Id. ¶ 3.)

Perry filed the present complaint seeking one billion dollars ($1, 000, 000, 000.00) in compensatory damages from Boston Scientific. ( Id. ¶ 10) Perry alleges that Boston Scientific manufactured and distributed defective pacemakers, ( id. ), and that the company failed to warn him of the potential hazards associated with the implantation of such a device, ( id. ¶ 5). In connection with his initial filing, Perry submitted an application for leave to proceed IFP, (Appl., Mar. 29, 2013, Docket No. 2), which the Magistrate Judge subsequently denied, ("April Order, " Apr. 9, 2013, Docket No. 3).

Perry then filed a motion for appointment of counsel, (Mot. to Appoint Counsel, Apr. 29, 2013, Docket No. 6), and a motion for reconsideration of the Magistrate Judge's denial of IFP status, (Mot. to Reconsider, Apr. 29, 2013, Docket No. 7).[2] In response, the Magistrate Judge again denied leave to proceed IFP on the basis that Perry is not exempt from the "three strikes" rule of 28 U.S.C. § 1915(g). (June Order at 5.) The Magistrate Judge also denied Perry's request for appointment of counsel, but noted that Perry may renew his request if he continues to pursue this action. ( Id. at 6.)

Perry appeals the Magistrate Judge's June Order and continues to argue that he is exempt from the three strikes rule because he faces imminent danger of serious physical injury. (Appeal at 3, July 22, 2013, Docket No. 13.) Perry has also filed a motion to amend his complaint, in which he requests injunctive relief in the form of Boston Scientific removing his allegedly defective pacemaker and providing ongoing medical care. (Mot. to Amend at 1, 6, July 22, 2013, Docket No. 14.) Perry's amended complaint purports to bring claims against Boston Scientific under 42 U.S.C. § 1983, arising from violations of the Eighth and Fourteenth Amendments. ( Id. at 1, 5.)



The standard of review applicable to an appeal of a Magistrate Judge's order on nondispositive pretrial matters is highly deferential. Roble v. Celestica Corp., 627 F.Supp.2d 1008, 1014 (D. Minn. 2007). The Court will reverse such an order only if it is clearly erroneous or contrary to law. See 28 U.S.C. § 636(b)(1)(A); Fed.R.Civ.P. 72(a); D. Minn. LR 72.2(a).


The "three strikes" rule denies IFP status to "an inmate who has had three prior actions or appeals dismissed as frivolous, malicious, or for failure to state a claim." Martin v. Shelton, 319 F.3d 1048, 1050 (8th Cir. 2003) (citing 28 U.S.C. § 1915(g)). The three strikes rule does not bar prisoners from filing actions while incarcerated, but it limits the right of an inmate, even one with no assets, to file actions without paying the standard filing fees. Perry does not dispute that he is subject to the three strikes rule because he has filed at least three prior actions that meet the criteria of the statute. He contends, however, that he is "under imminent danger of serious physical injury, " and therefore falls within the exception to the three strikes rule that appears in the statute. 28 U.S.C. § 1915(g).

The Court concludes that the Magistrate Judge did not err in determining that Perry does not fall within the imminent danger exception in this action. "By 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." Martin, 319 F.3d at 1050 (internal quotation marks omitted). While the statute simply states that the three strikes rule does not apply if "the prisoner is under imminent danger of serious physical injury, " it would be an unreasonable reading of the statute not to require a connection between the imminent danger and the action filed by the prisoner. In other words, the action in which the prisoner seeks IFP status must have the potential to prevent the imminent danger. See Pettus v. Morgenthau, 554 F.3d 293, 298-99 (2d Cir. 2009) (holding that "the complaint of a three-strikes litigant must reveal a nexus between ...

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