United States District Court, Central District of Illinois
May 23, 2001
GEORGE FIELDS, PLAINTIFF,
JERRY GILMORE, ET AL., DEFENDANTS.
The opinion of the court was delivered by: Baker, Judge.
The Plaintiff, George Fields sought leave to proceed in forma pauperis
[d/e 1]. On March 9, 2001, the court allowed the plaintiff to proceed
without prepayment of the filing fees. However, a review of the
plaintiff's litigation history reveals that at least three of Fields'
previous actions have been dismissed in both the Northern and the Southern
Districts of Illinois on the grounds that they were frivolous,
malicious, or failed to state a claim upon which relief may be granted.
See, e.g., Fields v. Page, 96-1046-JPG (S.D. Ill., dismissed as frivolous
On April 29, 1997); Fields v. Page, 95-798-JPG (S.D. Ill., dismissed as
frivolous on Dec. 28, 1995); Fields v. Dillon, 94-469-WDS (S.D. Ill.,
dismissed as frivolous on Mar. 6, 1995); and 91-4083-ACW, Fields v.
Bentivenga, (N.D.Ill., dismissed as frivolous on July 29, 1991). As a
result the plaintiff's in forma status must be revoked. He is not
eligible to proceed in forma pauperis under the Prison Litigation Reform
Act of 1995 (PLRA), enacted on April 26, 1996. The "three strikes"
provision of the PLRA bars prisoner's civil rights suits when a prisoner
plaintiff has already had three prior civil rights lawsuits dismissed on
grounds that they were frivolous, malicious or fail to state a claim,
unless the plaintiff alleges that he is under an imminent threat of
serious physical injury. See 28 U.S.C.A. § 1915(g); see also Sloan
v. Lesza, 181 F.3d 857, 858 (7th Cir. 1999).
In the case at bar, the plaintiff does not allege that he is under an
imminent threat of serious physical injury and the court finds no
indication that he is under any imminent threat of serious physical
injury. The plaintiff's claim is that the defendants were indifferent to
his safety when one of the defendants, a correctional officer, left the
plaintiff's cell door open which allowed another inmate, who is a gang
member, to attack the plaintiff. This incident took place at Pontiac
Correctional Center on June 13, 1999. The plaintiff did not grieve the
incident until August 29, 1999. In his grievance, he requested the name
and identification number of the inmate who attacked him and a transfer.
The plaintiff filed his grievance as an emergency grievance directly to
the Administrative Review Board. In its November 5, 1999 response, the
Administrative Review Board indicated there was no justification for
additional consideration of the plaintiff's grievance because [he] was no
longer incarcerated at Pontiac. The memorandum indicated that he was
incarcerated at Dixon Correctional Center. Also, when the plaintiff
signed his complaint on January 3, 2001, he indicated that he was
incarcerated at Dixon Correctional Center. Fields' complaint concerns
events at Pontiac Correctional Center, occurring almost two years ago,
where Fields is no longer incarcerated. There is nothing in the
plaintiff's complaint that indicates he is in imminent danger of serious
Fields is not just disentitled to file this action without prepayment;
filing this complaint violates § 1915(g). In Perez v. Wisconsin
Department of Corrections, 182 F.3d 532 (7th Cir. 1999), the court held
that statutes in the form "no suit shall be brought if(or unless) some
circumstance obtains" should be taken at face value, and if the condition
has not been satisfied the action must be dismissed. This is how the
Supreme Court treated similar statutes in Hallstrom v. Tillamook County,
493 U.S. 20, 110 S.Ct. 304, 107 L.Ed.2d 237 (1989), and McNeil v. United
States, 508 U.S. 106, 113 S.Ct. 1980, 124 L.Ed.2d 21 (1993). Its approach
is no less applicable to § 1915(g).
Two years ago, the Honorable Blanche M Manning, Northern District of
Illinois, counted four strikes and concluded that Fields could not
proceed in forma pauperis. See Fields v. Oliver, 99-0568, dismissed on
April 28, 1999. Hence, it is clear that Mr. Fields is well aware that he
has already earned more than three strikes and is not eligible to proceed
in forma pauper unless he is under imminent threat of serious physical
injury. Obviously, Judge Manning's order, wherein Mr. Fields was advised
that he is not eligible to proceed in forma pauperis, has had no effect
on him. In his instant complaint, the plaintiff stated that he had filed
only two lawsuits while incarcerated. However, a review of PACER shows
the plaintiff has filed at least IS lawsuits while incarcerated. These
lawsuits date back to 1991.
Often in situations as the one before the court — and they are
distressingly common — courts enjoin the frivolous litigant from
filing any paper with the court or its personnel without express prior
authorization by a judge of the court. E.g., Vinson v. Heckmann,
940 F.2d 114 (5th Cir. 1991) (per curiam). The problem with that response
is that it places on the court, specifically the designated judge, the
burden of reading the litigant's requests for authorization to file. It
allows the barrage to continue. A response less burdensome to the
judiciary, and the one this court applies to the instant case, is the
authority of Support Systems International, Inc. v. Mack, 45 F.3d 185
(7th Cir. 1995), discussed infra. See also Sloan v. Lesza, 181 F.3d 857,
858 (7th Cir. Ill. 1999), where the court held:
An effort to bamboozle the court by seeking permission
to proceed in forma pauperis after a federal judge has
held that § 1915(g) applies to a particular
litigant will lead to immediate termination of the
suit. Moreover, the fee remains due, and the Seventh
Circuit Court of Appeals held in Newlin v. Helman,
123 F.3d 429, 436-37 (7th Cir. 1997), [overruled on
other grounds], that unpaid docket fees incurred by
litigants subject to § 1915(g) lead straight to
an order forbidding further litigation.
The judicial authority to curb Fields' litigation is ample. See, e.g.,
In re Anderson, 511 U.S. 364, 114 S.Ct. 1606, 128 L.Ed.2d 332 (1994) (per
curiam); Sassower v. Mead Data Central, Inc., 510 U.S. 4, 114 S.Ct. 2,
126 L.Ed.2d 6 (1993) (per curiam); Sassower v. American Bar Association,
33 F.3d 733
(7th Cir. 1994) (per curiam); Perry v. Pogemiller, 16 F.3d 138
140 (7th Cir. 1993); Martin-Trigona v. Sassower, 9 F.3d 226
, 228 (2d
Cir. 1993); Gelabert v. Lynaugh, 894 F.2d 746
, 748 (5th Cir. 1990) (per
curiam). The Seventh Circuit has already established the most effective
form in which to exercise that authority, consistent with the Supreme
Court's admonition that any sanction imposed by a federal court for the
abuse of its processes be tailored to the abuse. In re Anderson supra,
511 U.S. at ___, 114 S.Ct. at 1608; Sassower v. Mead Data Central, Inc.,
supra, 510 U.S. at ___, 114 S.Ct. at 3.
Payment of the docket fee, or a proper grant of forma pauperis status,
is a precondition to Fields' ability to proceed in this case. Here full
payment of the docketing fee is required and has not been made. This court
is not at all disposed to give Fields extra time to pay. He committed a
fraud on the federal judiciary by stating he had filed only two previous
civil cases and seeking and obtaining permission to proceed in forma
pauperis without revealing that he has already been held to be covered by
§ 1915(g). A litigant who follows frivolous litigation with fraud
has no claim to a tender reception. Advising Mr. Fields that he is not
eligible to proceed in forma pauperis has had no effect on him.
Therefore, the court finds that this plaintiff has earned a Mack order.
An order under Mack requires the clerk of the court to return civil
complaints and related pleadings unfiled, without even presenting them to
judges, until the plaintiff's debt to the judicial system has been paid.
See Support Systems International, Inc. v. Mack, 45 F.3d 185 (7th Cir.
IT IS THEREFORE ORDERED:
1. the plaintiff has earned more than three strikes
and is subject to 28 U.S.C.A. § 1915(g);
2. the plaintiff is barred from proceeding in forma
3. the plaintiff's in forma pauperis status is revoked;
4. the court's March 9, 2001 scheduling order [d/e 4] is
5. the court's January 22, 2001 prepayment order is
vacated [d/e 2];
6. the plaintiff's petition to proceed in forma
pauperis is denied [d/e 1], pursuant to 28
U.S.C.A. § 1915(g);
7. the plaintiff's case is dismissed for failure to
prepay the $150.00 filing fee;
8. the parties shall bear their own costs;
9. until the plaintiff has paid in full all
outstanding fees in all civil actions he has filed
in this district, the clerk of the court in this
district will return unfiled all papers he
10. this court authorizes the plaintiff to submit to
this court, no earlier than two years from the
date of this order, a motion to modify or rescind
11. this order does not apply to criminal cases or
petitions challenging the terms of the plaintiff's
12. the clerk of the court is directed to document
that this plaintiff is barred from proceeding in
forma pauperis on the three strikes log.
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