Christopher Gilmore v. Thomas Dart

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted May 28, 2024*
Decided June 3, 2024
Before
FRANK H. EASTERBROOK, Circuit Judge
MICHAEL B. BRENNAN, Circuit Judge
JOSHUA P. KOLAR, Circuit Judge
No. 23-1901
CHRISTOPHER GILMORE,
Plaintiff-Appellant,
v.
THOMAS DART, et al.,
Defendants-Appellees.
Appeal from the United States District
Court for the Northern District of
Illinois, Eastern Division.
No. 23 C 2135
Jorge L. Alonso,
Judge.
O R D E R
If a prisoner has had three or more suits that were dismissed as frivolous, as
malicious, or for failure to state a claim, he may not proceed in forma pauperis (IFP)—
that is, without prepaying the filing fee—unless he is “under imminent danger of
* The appellees were not served with process and have not participated in this
appeal. We have agreed to decide the case without oral argument because the brief and
record adequately present the facts and legal arguments, and oral argument would not
significantly aid the court. F ED. R. A PP . P. 34(a)(2)(C).
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with F ED. R. APP . P. 32.1

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No. 23-1901 Page 2
serious physical injury.” 28 U.S.C. § 1915(g). Christopher Gilmore, an Illinois state
prisoner, has three strikes.† He sought to invoke the imminent-danger exception based
on his allegations that he was repeatedly denied medical care for a shoulder injury,
back pain, and headaches. Because the district court correctly ruled that Gilmore did
not sufficiently allege an imminent threat of serious physical injury, we affirm.
According to Gilmore, whose allegations we take as true at this stage, Wallace v.
Baldwin, 895 F.3d 481, 483 (7th Cir. 2018), he was injured in February 2023 while being
transported by van to a court appearance. An abrupt turn by the driver threw him off
his seat across the van, causing a dislocated shoulder and back injuries. He was denied
immediate medical care but several hours later was taken to the medical center, where
doctors took x-rays and gave him painkillers. After the painkillers wore off, Gilmore
says he experienced headaches, back pain, and shoulder aches. Beginning in February
2023, he requested medical care “numerous” times, and in the following months he
dislocated his shoulder twice more.
In April 2023, Gilmore filed a pro se complaint accompanied by a request to
proceed in forma pauperis, alleging constitutional claims relating to the transport
incident and the ongoing denial of medical care. The district court denied the request,
stating that Gilmore had incurred three strikes under the Prison Litigation Reform Act,
28 U.S.C. § 1915(g), and that his allegations of persistent pain did not rise to an
imminent threat of serious physical injury.
On appeal, Gilmore maintains that he should be allowed to proceed IFP because
he alleged that he is in imminent danger of serious physical harm. He asserts that he
requested and was denied medical care “numerous” times for his pain over the course
of a year. (He also notes that he received an MRI in March 2024 and has been scheduled
for shoulder surgery.)
† Gilmore has received strikes for three cases in our circuit: Gilmore v. Chi. Police
Dep’t, et al., No. 21-C-4629 (N.D. Ill.); Gilmore v. Sheenen, 2013 WL 949471 (N.D. Ill. Mar.
8, 2013); and Gilmore v. Downey, 2013 WL 6489971 (N.D. Ill. Dec. 10, 2013). One of
Gilmore’s strikes stemmed from a dismissal based on the doctrine of Heck v. Humphrey,
512 U.S. 477, 487 (1994). Sheenen, 2013 WL 949471, at *2. An appeal by a different
plaintiff is pending in this court raising the question of whether a complaint dismissed
as Heck-barred qualifies for a strike under 28 U.S.C. § 1915(g), Holmes v. Marion County,
No. 22-3032.

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No. 23-1901 Page 3
We review the district court’s interpretation of the three-strikes provision de
novo. Wallace, 895 F.3d at 483. The imminent-danger exception requires the prisoner to
make a “plausible allegation” of serious, imminent physical harm, Sanders v. Melvin,
873 F.3d 957, 961 (7th Cir. 2017), as evaluated at the time of filing, Fletcher v. Menard
Corr. Ctr., 623 F.3d 1171, 1174–75 (7th Cir. 2010).
Gilmore’s allegations of injuries and lack of treatment do not rise to the level of
an imminent danger. The injuries he sustained from the transportation incident are a
past harm. Past harms do not suffice for the imminent-danger exception, which is
available only for “genuine emergencies” where “time is pressing” and the threat is
“real and proximate.” Heimermann v. Litscher, 337 F.3d 781, 782 (7th Cir. 2003) (citation
omitted). And while the denial of medical care can be an imminent danger,
see Ciarpaglini v. Saini, 352 F.3d 328, 330 (7th Cir. 2003); Fletcher, 623 F.3d at 1173,
Gilmore has not alleged that the denial of any care created harm that was imminent. He
takes issue with the type of care he received—allegedly a sling, pain medications, and
physical therapy—and delays in receiving his requested care. But not receiving the
exact type of medical care he sought on the timeline he requested, without more, does
not raise an imminent threat of serious physical harm.
AFFIRMED

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