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Andy L. Cooper, No. C63527 v. Eric Russell

April 1, 2013

ANDY L. COOPER, NO. C63527, PLAINTIFF,
v.
ERIC RUSSELL, RONALD K. ATCHISON, AND RANDY S. VALDEZ, DEFENDANTS.



The opinion of the court was delivered by: Michael J. Reagan United States District Judge

MEMORANDUM AND ORDER REAGAN, District Judge:

Plaintiff Andy L. Cooper, an inmate in Big Muddy River Correctional Center, brings this action for deprivations of his constitutional rights pursuant to 42 U.S.C. § 1983. Plaintiff is a civilly committed sexually dangerous person, serving an indefinite sentence. This case is now before the Court for a preliminary review of the complaint pursuant to 28 U.S.C. § 1915A*fn1 , 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.

Plaintiff has moved to proceed in forma pauperis (Doc. 2) The PLRA provides: "In no event shall a prisoner bring a civil action or appeal a judgment in a civil action or proceeding under this section [proceedings in forma pauperis] 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).

Prior to filing this action, Plaintiff had "struck out" by having more than three lawsuits dismissed as frivolous, malicious, or for failure to state a claim: Cooper v. McNamarra, No. 93-cv-904-JLF (S.D.Ill. dismissed as frivolous Feb. 16, 1995); Cooper v. Hall, No. 94-cv-0010-JLF (S.D.Ill. dismissed as frivolous Mar. 16, 1995); and Cooper v. Reinhard, No. 96-cv-50293 (N.D.Ill. dismissed with a strike Dec. 23, 1996). Consequently, this Court must determine whether Plaintiff is "under imminent danger of serious physical injury," such that this action should be allowed to proceed without full pre-payment of the filing fee, despite the fact that Plaintiff has "struck out."

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)). In general, courts "deny leave to proceed IFP when a prisoner's claims of imminent danger are conclusory or ridiculous." Id. at 331 (citing Heimermann v. Litscher, 337 F.3d 781, 782 (7th Cir. 2003)). Additionally, "[a]llegations of past harm do not suffice" to show imminent danger; rather, "the harm must be imminent or occurring at the time the complaint is filed," and when prisoners "allege only a past injury that has not recurred, courts deny them leave to proceed IFP." Id. at 330 (citing AbdulWadood v. Nathan, 91 F.3d 1023 (7th Cir. 1996)).

From what little of the complaint the Court can decipher, Plaintiff is not "under imminent danger of serious physical injury." Plaintiff appears to be claiming that his personal property was stolen, and that he is harassed and treated unfairly by prison staff. At worst, Plaintiff claims aspirin for his heart regimen, support hose and hemorrhoid ointment were stolen-meaning that Plaintiff had to purchase those items anew with his own funds.*fn2 Plaintiff makes no allegations of imminent harm from not having those items. Therefore, he does not qualify to proceed IFP and he must pay the full $350.00 filing fee before this case may proceed. Therefore, Plaintiff's motion for pauper status (Doc. 3) shall be denied. Plaintiff's obligation to pay the filing fee for this action was incurred at the time the action was filed, thus the filing fee of $350.00 remains due and payable. See 28 U.S.C. § 1915(b)(1); Lucien v. Jockisch, 133 F.3d 464, 467 (7th Cir.1998).

Consistent with Section 1915A, and in the interest of judicial economy, the Court will address a second hurdle Plaintiff must overcome: the inadequacy of the complaint itself. If Plaintiff opts to pay the filing fee and proceed, he must also submit an amended complaint because the original complaint is virtually indecipherable. The Court cannot discern new claims from historic claims (see Doc. 1, pp. 4-6), or "who did what to whom, and when."

Federal Rule of Civil Procedure 8(a)(2) requires a "short and plain statement of the claim showing that the pleader is entitled to relief." In addition, Rule 8(e)(1)1 states that "[e]ach averment of a pleading shall be simple, concise, and direct." The primary purpose of these provisions is rooted in fair notice: Under Rule 8, a complaint "'must be presented with intelligibility sufficient for a court or opposing party to understand whether a valid claim is alleged and if so what it is.'" Wade v. Hopper, 993 F.2d 1246, 1249 (7th Cir.) (citations omitted), cert. denied, 510 U.S. 868 (1993). See also Vicom, Inc. v. Harbridge Merch. Serv., Inc., 20 F.3d 771, 775-76 (7th Cir. 1994); Conley v. Gibson, 355 U.S. 41, 48 (1957); Dausch v. Rykse, 52 F.3d 1425, 1430 (7th Cir.1994); Jennings v. Emry, 910 F.2d 1434, 1436 (7th Cir. 1990). Therefore, the complaint (Doc. 1) shall be dismissed without prejudice, and with leave to amend.

Lastly, in light of the complaints shortcomings, the Court will consider Plaintiff's motion for appointment of counsel (Doc. 2). Plaintiff submits documentation reflecting that his attempts to secure counsel have been fruitless. He indicates that he has "some college," but also that he has "brain disease." Plaintiff does not have an absolute right to court-appointed counsel in his civil suit. Romanelli v. Suliene, 615 F.3d 847, 851 (7th Cir. 2010) (citing Pruitt v. Mote, 503 F.3d 647, 655 (7th Cir. 2007) (en banc)). See also Johnson v. Doughty, 433 F.3d 1001, 1006 (7th Cir. 2006). However, pursuant to 28 U.S.C. ยง 1915(e)(1), the Court "may request an attorney to represent any person unable to afford counsel." In determining whether to make such a request, the Court must consider: (1) whether Plaintiff has made a reasonable attempt to obtain counsel or been effectively precluded from doing so (which he has); and if so, (2) given the difficulty of the case, whether Plaintiff appears competent to litigate the case himself. Pruitt v. Mote, 503 F.3d 647, 654 (7th Cir. 2007) (citing Farmer v. Haas, 990 F.2d 319, 321--22 (7th Cir. 1993)). Although Plaintiff does not detail the impact of his "brain disease," his pleadings suggests that he is capable of drafting a viable complaint, and fully litigating the relatively simplistic claims ...


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