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Kennedy v. Muhs

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ILLINOIS


November 15, 2010

LARRY KENNEDY, #C-82702, PLAINTIFF,
v.
A. MUHS, ET AL., DEFENDANTS.

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

MEMORANDUM AND ORDER

Plaintiff Larry Kennedy, currently a prisoner in the Menard Correctional Center, has filed a pro se civil rights complaint pursuant to 42 U.S.C. § 1983. He also seeks leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915.

A prisoner may not bring a civil action or appeal a civil judgment 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).

Plaintiff has had three or more prior prisoner actions dismissed on the grounds that they were frivolous, malicious, or failed to state a claim upon which relief may be granted. See, e.g., Kennedy v. Hughes, Case No. 91-cv-20283 (N.D. Ill., filed Oct. 15, 1991); Kennedy v. Quinley, Case No. 97-cv-1268 (C.D. Ill., filed July 29, 1997); Kennedy v. Briley, Case No. 01-cv-2449 (N.D. Ill., filed June 13, 2001). Further, Plaintiff has been advised at least twice that he has accumulated three strikes. See Kennedy v. Schomig, Case No. 01-cv-1262 (C.D. Ill., filed June 22, 2001); Kennedy v. Godinez, Case No. 06-cv-1115 (C.D. Ill., filed May 4, 2006).

The Court has reviewed the allegations in the complaint: a 51-page pleading against 66 defendants. Plaintiff complains about his release on parole and subsequent parole revocation in 2008, assorted disciplinary proceedings that occurred over the past two years, and some harassment by correctional officers. None of these past incidents support a finding that Plaintiff is in imminent danger.

Plaintiff also states that all Defendants are aware that he has anger-management issues with an extremely volatile antisocial personality. As such, his theory is that Defendants know how easy it is to provoke him, which could easily lead to an altercation resulting in serious harm or death. Even if this is true, these allegations do not show that Plaintiff is under imminent danger of serious physical injury.

Accordingly, the motion for leave to proceed in forma pauperis is DENIED. This action is DISMISSED without prejudice to Plaintiff bringing these claims in a fully pre-paid complaint. All other pending motions are now MOOT. The Clerk of Court is DIRECTED to close this case on the Court's docket.

IT IS SO ORDERED.

G. PATRICK MURPHY United States District Judge

20101115

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