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Dickerson v. Bergaland

United States District Court, Seventh Circuit

June 6, 2013

BOBBY LEE DICKERSON, No. M35352, Plaintiff,
v.
JUDGE BERGALAND, MR. KERR, C/O BROMISE, C/O GREEN, C/O DAVIS, BRENDA SUITS, RANDY DAVIS, LARUE LOVE, ROBIN DILLION, DONALD JAI, and CONNIE HOUSTON, Defendants.

MEMORANDUM AND ORDER

MICHAEL J. REAGAN, District Judge.

Plaintiff Bobby Lee Dickerson, Jr., is currently incarcerated at Vienna Correctional Center. Plaintiff brings this pro se civil rights action pursuant to 42 U.S.C. § 1983 regarding alleged constitutional violations and federal statutory violations that occurred: (1) with respect to his criminal prosecution in Henry County, Illinois, within the Central Judicial District of Illinois; (2) regarding the conditions of confinement at Stateville Correctional Center, located within the Northern Judicial District of Illinois; (3) as a result of the conditions of his confinement and medical care at Vienna Correctional Center, within the Southern Judicial District of Illinois; and (4) in some way connected to his parole in the State of Washington (Doc. 1).[1] Plaintiff seeks leave to proceed in forma pauperis ("IFP") in this case, without prepayment of the Court's usual $350.00 filing fee in a civil case (Doc. 2). See 28 U.S.C. §1914(a).[2]

Pursuant to 28 U.S.C. § 1915A, the Court is required to conduct a prompt threshold review of the complaint. However, 28 U.S.C. § 1915(g)-the "three strikes" rule- presents a preliminary hurdle that Dickerson must clear before that threshold review can be undertaken. In addition, the complaint does not satisfy minimum pleading requirements. It is also clear that severance of claims into separate cases is appropriate in accordance with George v. Smith, 507 F.3d 605 (7th Cir. 2007), after which some of those claims, if brought in this judicial district, would be subject to transfer pursuant to 28 U.S.C. § 1391(b), § 1404(a). In the end, the Court finds that dismissal of the complaint, without prejudice is warranted.

Pauper Status and the "Three Strikes" Rule

A federal court may permit a prisoner who is indigent to bring a "suit, action or proceeding, civil or criminal, " 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). In the case of civil actions, a prisoner's affidavit of indigence must be accompanied by "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).

Upon tender of a proper affidavit and certified copy of a trust fund account statement, a prisoner then is assessed an initial partial filing fee of twenty percent of the greater of: (1) the average monthly deposits to the prisoner's trust fund account; or (2) the average monthly balance in the prisoner's trust fund account for the six-month period immediately preceding the filing of the prisoner's suit. See 28 U.S.C. § 1915(b)(1)(A)-(B). After payment of an initial partial filing fee, a prisoner is required to make monthly payments of twenty percent of the preceding month's income credited to the prisoner's trust fund account. See 28 U.S.C. § 1915(b)(2). The agency having custody of a prisoner must forward payments from the prisoner's trust fund account to the clerk of the district court where the prisoner's case is pending each time the amount in the account exceeds $10.00 until the filing fee in the case is paid. See id. Importantly, a prisoner incurs the obligation to pay the filing fee for a lawsuit when the lawsuit is filed, and the obligation continues regardless of later developments in the lawsuit, such as denial of leave to proceed IFP or dismissal of the suit. See 28 U.S.C. § 1915(b)(1), (e)(2); Lucien v. Jockisch, 133 F.3d 464, 467 (7th Cir.1998); In re Tyler, 110 F.3d 528, 529-30 (8th Cir.1997).

In this case, Plaintiff has tendered an affidavit of indigence and trust fund statement that are sufficient as to form and which indicates he is indigent, but this is not the end of the matter because 28 U.S.C. § 1915 further provides:

[i]n 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) (emphasis added).

Court documents are, of course, public records of which the Court can take judicial notice. See Henson v. CSC Credit Servs., 29 F.3d 280, 284 (7th Cir. 1994). Review of documents filed in the electronic docket of this Court, and on the Public Access to Court Electronic Records ("PACER") website (www.pacer.gov), discloses that Dickerson has already had three other cases dismissed as frivolous or for failure to state a claim upon which relief can be granted. See Dickerson v. Satterburg, No. 09-cv-1279-RSM (W.D. Wash. Oct. 22, 2009); Dickerson v. Bals, No. 09-cv-1419-JCC (W.D. Wash. Jan. 14, 2010); Dickerson v. RJC King County Jail, 09-cv-1508-JCC (W.D. Wash. Jan. 14, 2010).

Dickerson failed to disclose his full litigation history. He referenced only one of two civil cases filed in the Central District of Illinois, and he made no mention of his extremely lengthy litigation history in the Western District of Washington (which includes the three cases cited as strikes). A plaintiff's failure to disclose his litigation history, particularly when he seeks to proceed IFP, may be grounds for immediate dismissal of the suit. Ammons v. Gerlinger, 547 F.3d 724, 725 (7th Cir. 2008) (termination of the suit is an appropriate sanction for struck-out prisoner who took advantage of court's oversight and was granted leave to proceed IFP); Sloan v. Lesza, 181 F.3d 857, 858-59 (7th Cir. 1999) (litigant who sought and obtained leave to proceed IFP without disclosing his three-strike status committed a fraud upon the court); see also Hoskins v. Dart, 633 F.3d 541, 543 (7th Cir. 2011) (dismissal with prejudice appropriate where Court-issued complaint form clearly warned Plaintiff that failure to provide litigation history would result in dismissal). Although dismissal as a sanction is appropriate in this situation, there are additional considerations that merit discussion.

Because Plaintiff has three strikes for purposes of Section 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)). 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)). There also must be an adequate nexus, "fairly traceable" between imminent harm and the legal claims. See Pettus v. Morgenthau, 554 F.3d 293, 298-99 (2d Cir. 2009).

Although the complaint is quite muddled, and without regard to the merits of each claim, it is clear that Plaintiff's claims do not, as presently pleaded, meet the Seventh Circuit's standard for finding "imminent danger." Obviously, Plaintiff's claims regarding his criminal prosecution do not pertain to any imminent harm; rather, he references the denial of due process, a retaliatory conspiracy, malicious prosecution and racial discrimination. Similarly, any issue regarding Plaintiff's parole does not present any imminent danger of harm. Plaintiff takes issue with the inability to regularly shower at Stateville Correctional Center, but he is no longer housed there, removing him from harm's way. Plaintiff's claims regarding the conditions of his confinement and medical care at Vienna Correctional Center do suggest the possibility of imminent danger of serious physical harm.

Plaintiff claims that there is asbestos in the ceilings at Vienna, and that there was a delay in getting him an inhaler-both of which he asserts could cause death. Because Plaintiff was able to secure an inhaler, that is deemed a past risk. However, the risk of exposure to asbestos is an ongoing risk of serious physical injury; therefore, Plaintiff can proceed as a pauper with respect to his claims regarding the conditions of his confinement and medical care at Vienna Correctional Center. Nevertheless, those claims cannot be joined with Plaintiff's initial ...


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