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Johnson v. Delgado

June 11, 2010

TERRY C. JOHNSON, PLAINTIFF,
v.
JOSE A. DELGADO, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Reagan, District Judge

MEMORANDUM AND ORDER

This matter is before the Court on the motion of Defendants Delgado, Gaetz, Hulick, Lee, Mitchell, Newell, and Walker to revoke Plaintiff's pauper status. See (Doc. 22).

BACKGROUND

At the time he filed his pro se civil rights complaint pursuant to 42 U.S.C. § 1983 (Doc. 1) and his motion to proceed in forma pauperis pursuant to 28 U.S.C. § 1915 (Doc. 2), Plaintiff was confined at the Menard Correctional Center. After filing his complaint and his motion to proceed in forma pauperis, Plaintiff was released from confinement. Because Plaintiff was detained at the time he filed these pleadings, however, the Court concluded that the prisoner provisions of 28 U.S.C. § 1915 still apply. See Robbins v. Switzer, 104 F.3d 895, 897-98 (7th Cir. 1997).

On March 1, 2010, this Court granted Plaintiff's motion to proceed in forma pauperis. See (Doc. 7). Following the procedure detailed by the Seventh Circuit in Robbins, this Court assessed an initial partial filing fee of $14.52 and gave Plaintiff 15 days to pay this sum. The Court further directed Plaintiff to either pay the balance of the filing fee or submit a new motion to proceed in forma pauperis with respect to it also within 15 days.

Plaintiff was thereafter granted additional time to comply with this Court's Order. See (Doc. 12). Plaintiff has paid the $14.52 initial partial filing fee - albeit belatedly - and Plaintiff has also submitted a motion to proceed in forma pauperis with respect to the balance of the filing fee (Doc. 16). Plaintiff's motion to proceed in forma pauperisi with regard to the balance of the filing fee ($335.48) is still pending before the Court.

On May 10, 2010, Defendants filed the instant motion challenging the Plaintiff's eligibility to proceed in forma pauperis. Defendants contend that, prior to commencing this civil action, Plaintiff had previously acquired three qualifying "strikes" for purposes of 28 U.S.C. § 1915(g). If Plaintiff had three qualifying "strikes" when he commenced this action - at a time when he was incarcerated - then Plaintiff cannot proceed in forma pauperis unless he was "under imminent danger of serious physical injury" at the time he filed his action. Because the Defendants claim that the complaint fails to allege that Plaintiff was under "under imminent danger," Defendants argue that the Court erred in granting Plaintiff's motion to proceed in forma pauperis.

In their memorandum of law (Doc. 23), Defendants contend that the following dismissals count as "strikes": (1) a Memorandum and Order dated March 3, 2000, issued by District Judge Harold A. Baker in Johnson v. Marshal, Case No. 99-1190 (C.D. Ill.); (2) an Order dated January 13, 2003, issued by District Judge J. Phil Gilbert in Johnson v. Ramsey, Case No. 00-185 (S.D. Ill.); (3) an Order dated March 14, 2003, issued by the undersigned in Johnson v. Nix, Case No. 02-588 (S.D. Ill.); and (4) an Order dated October 26, 2006, issued by District Judge William D. Stiehl in Johnson v. Bowers, Case No. 05-148 (S.D. Ill).

On June 1, 2010, Plaintiff filed a response in opposition to Defendants' motion (Doc. 27). Plaintiff's response takes issue with the arguments set forth in Defendants' memorandum of law. Thus, Defendants' motion to revoke Plaintiff's in forma pauperis status is ripe for determination.

DISCUSSION

A prisoner may not bring a civil action or appeal a civil judgment in forma pauperis under 28 U.S.C. § 1915 "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." 28 U.S.C. § 1915(g). As noted above, the prisoner provisions of § 1915 - including those contained in § 1915(g) - apply to Plaintiff even though he was released from confinement during the time his motion to proceed in forma pauperis was pending before this Court. Robbins, 104 F.3d at 897-98.

In the Seventh Circuit, a "strike" may be counted if any portion of a prior action is dismissed as frivolous, malicious, or for failing to state a claim. See George v. Smith, 507 F.3d 605, 607-08 (7th Cir. 2007); Boriboune v. Berge, 391 F.3d 852, 855 (7th Cir. 2004). Whether a prior dismissal counts as a "strike" for purposes of § 1915(g) must be determined by this Court. Gleash v. Yuswak, 308 F.3d 758, 761-62 (7th Cir. 2002) . Any notation in a prior dismissal order that such dismissal would count as one of Plaintiff's three "strikes" is nothing more than "a housekeeping matter." Id. at 761. Similarly, the lack of a notation in a prior dismissal order that such dismissal counts as a "strike" does not prevent this Court from counting the prior dismissal as a "strike" for purposes of § 1915(g). In short, this Court must examine the prior dismissal order and determine whether the complaint (or any claim asserted in the complaint) was dismissed because it was frivolous, malicious, or failed to state a claim upon which relief may be granted.

The Court's inquiry, however, does not end there. In addition to reviewing the dismissal order, this Court must review the rest of the record in the prior case to determine whether there is anything that might prevent a particular dismissal order from counting as a "strike" for purposes of § 1915(g). A later docket entry, for example, might reveal that the dismissal order was vacated on appeal by a Court of Appeals. A dismissal order that has been vacated on appeal cannot count as a "strike" for purposes of § 1915(g).

The Court now turns to an examination of the prior dismissal orders that the Defendants claim constituted "strikes" when this ...


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