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Brandon Martin, #B-51077 v. Donald Gatez

February 6, 2012

BRANDON MARTIN, #B-51077, PLAINTIFF,
v.
DONALD GATEZ, ET AL., DEFENDANTS.



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

MEMORANDUM AND ORDER

Plaintiff Brandon Martin, an inmate in Menard Correctional Center, brings this action for deprivations of his constitutional rights pursuant to 42 U.S.C. § 1983. Plaintiff is serving a ten year sentence for aggravated arson. The initial matter the Court must address is Plaintiff's motion for leave to proceed in forma pauperis ("IFP") (Doc. 19).

Motion for Leave to Proceed IFP

Plaintiff seeks leave to proceed IFP in this case without prepayment of the Court's usual $350.00 filing fee in a civil case. See 28 U.S.C. § 1914(a). Pursuant to 28 U.S.C. § 1915, a federal court may permit a prisoner who is indigent to bring a suit without prepayment of fees upon presentation of an affidavit stating the prisoner's assets together with "the nature of the action . . . and affiant's belief that the person is entitled to redress." 28 U.S.C. § 1915(a)(1). A prisoner filing a civil action must also submit "a certified copy of the trust fund account statement (or institutional equivalent) for the prisoner for the 6-month period immediately preceding the filing of the complaint . . . obtained from the appropriate official of each prison at which the prisoner is or was confined." 28 U.S.C. § 1915(a)(2).

In this case, Plaintiff has tendered an affidavit of indigence that is sufficient as to form and a certified copy of his prison trust fund account statement, but this is not the end of the matter. Under 28 U.S.C. § 1915:

In no event shall a prisoner bring a civil action or appeal a judgment in a civil action or proceeding under this section 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 acknowledged in his complaint that he has previously been assessed three "strikes" within the meaning of 28 U.S.C. § 1915(g) (Doc. 1, p. 3). The Court has consulted the Public Access to Court Electronic Records ("PACER") website (www.pacer.gov) to verify Plaintiff's strikes. See Bova v. U.S. Bank, N.A., 446 F. Supp. 2d 926, 930 n.2 (S.D. Ill. 2006) (a court may judicially notice public records available on government websites) (collecting cases). The electronic docket of the Northern District of Illinois discloses the following actions brought by Plaintiff, while a prisoner, seeking redress from officers or employees of a governmental entity that have been dismissed pursuant to 28 U.S.C. § 1915A for failure to state a claim upon which relief may be granted: Martin v. Bucklo, No. 06-cv-3457 (N.D. Ill. dismissed Aug. 30, 2006) (failure to state claim and defendant immune); Martin v. Guabla, No. 06-cv-5346 (N.D. Ill. dismissed Oct. 6, 2006); and Martin v. Office of Professional Standards et al, No. 06-cv-3265 (N.D. Ill. dismissed Oct. 12, 2006). Since Plaintiff has been assessed three "strikes" under 28 U.S.C. § 1915(g), he may not proceed IFP in this case unless he is under imminent danger of serious physical injury.

The United States Court of Appeals for the Seventh Circuit has explained that "imminent danger" within the meaning of 28 U.S.C. § 1915(g) requires a "real and proximate" threat of serious physical injury to a prisoner. Ciarpaglini v. Saini, 352 F.3d 328, 330 (7th Cir. 2003) (citing Lewis v. Sullivan, 279 F.3d 526, 529 (7th Cir. 2002)). The threat of physical attack by other inmates, which is perhaps the most obvious type of imminent danger a prisoner may face, is the threat Plaintiff asserts he is under in the instant action. Judge Easterbrook of the Seventh Circuit observed that the "imminent danger" provision: can serve its role as an escape hatch for genuine emergencies only if understood reasonably. If limited to situations in which, say, a beating is ongoing, no prisoner will find solace; once the beating starts, it is too late to avoid the physical injury; and once the beating is over the prisoner is no longer in "imminent danger" and so could not use this proviso to seek damages . . . . Reading the imminent-danger language this way would make it chimerical, a cruel joke on prisoners. The imminent-danger language must be read instead as having a role in those cases where time is pressing and the prisoner is unable to pursue . . . other options . . . . When a threat or prison condition is real and proximate, and when the potential consequence is "serious physical injury," then the courthouse doors are open even to those who have filed three frivolous suits and do not have a penny to their name.

Lewis, 279 F.3d at 530.

In this case, Plaintiff's allegations establish he could be under imminent danger of serious physical injury. Plaintiff contends he is a former Vice Lords gang member, and has now been targeted for a "hit" by inmates remaining in the gang. This is so, according to Plaintiff, because he shot and paralyzed a gang leader and because Plaintiff is known to be homosexual (Doc. 1-1, p. 1). Plaintiff has been attacked three times (Doc. 1, p.3); thus the threat is more than speculative. The most recent attack occurred in October 2011 when an inmate struck Plaintiff in the face and his leg was cut (Doc. 1, p. 3). The attack occurred despite Plaintiff's numerous reports to prison staff including names of individuals who had threatened Plaintiff, and despite Plaintiff's requests to be placed in protective custody. Plaintiff claims Defendants have refused to take action to separate him from other inmates who have issued threats, denied his requests for protective custody, and have informed him he will be returned to the general population (at the time he filed the complaint, he was in protective custody "kickout" status). If he goes back into general population, Plaintiff will have no protection from the gang members who have threatened to injure or kill him.

The Court therefore concludes that Plaintiff is under imminent danger of serious physical injury so as to escape the "three-strikes" rule of Section 1915(g), and he may proceed IFP in this case.

It is hereby ORDERED that Plaintiff's motion for leave to proceed IFP in this case (Doc. 19) is GRANTED. Pursuant to 28 U.S.C. § 1915(b), IT IS ORDERED that Plaintiff shall pay the $350.00 filing fee applicable to this civil action as follows:

1. Plaintiff shall pay an initial partial filing fee of $50.25 . See 28 U.S.C.

§ 1915(b)(1). The agency having custody of Plaintiff is DIRECTED to transmit this amount from Plaintiff's prison trust fund account to the Clerk of Court upon receipt of this Memorandum and Order.

2. Plaintiff shall make monthly payments of 20% of the preceding month's income credited to Plaintiff's prison trust fund account until the filing fee is paid in full.

3. The agency having custody of Plaintiff shall forward payments from

Plaintiff's account to the Clerk of this Court each time the amount in the account exceeds $10 until the filing fee is paid. Payments shall be mailed to: Clerk of the Court, United States District Court for the Southern District of Illinois, P.O. Box 249, East St. Louis, Illinois 62202.

Preliminary Review of the Complaint

The Court is required to conduct a preliminary review of the complaint pursuant to 28 U.S.C. § 1915A, which provides:

(a) Screening.-- The court shall review, before docketing, if feasible or, in any event, as soon as practicable after docketing, a complaint in a civil action in which a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity.

(b) Grounds for Dismissal.-- On review, the court shall identify cognizable claims or dismiss the complaint, or any portion of the complaint, if the complaint--

(1) is frivolous, malicious, or fails to state a claim on which relief may be granted; or

(2) seeks monetary relief from a defendant who is immune from such relief.

28 U.S.C. § 1915A.

An action or claim is frivolous if "it lacks an arguable basis either ...


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