Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Ellison v. Hodge

United States District Court, Seventh Circuit

June 10, 2013

BENNIE K. ELLISON, Plaintiff,
v.
MARC HODGE, VAUGHN, MUSGRAVE, PROPERTY DEPARTMENT, and MAILROOM, Defendants.

MEMORANDUM AND ORDER

G. PATRICK MURPHY, District Judge.

Petitioner Bennie K. Ellison, is currently incarcerated at Stateville Correctional Center on a temporary basis; he is officially assigned to Lawrence Correctional Center, which is within the Southern District of Illinois. Plaintiff has brought this pro se civil rights action pursuant to 42 U.S.C. § 1983 regarding alleged constitutional violations that occurred while he was housed at Lawrence Correctional Center (Doc. 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. 3). See 28 U.S.C. § 1914(a).[1]

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 Ellison has tendered an affidavit that is sufficient as to form and which indicates he is indigent. However, that is not the end of the matter. Even where a prisoner tenders a proper motion to proceed IFP and an affidavit of indigence, the court must make further inquiry before granting permission to proceed without pre-payment of the fee. Under 28 U.S.C. § 1915(g), a prisoner is prohibited from proceeding IFP

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). Furthermore, "[a] litigant who knows that he has accumulated three or more frivolous suits or appeals must alert the court to that fact." Ammons v. Gerlinger, 547 F.3d 724, 725 (7th Cir. 2008), citing Sloan v. Lesza, 181 F.3d 857, 858-59 (7th Cir. 1999).

A 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), [2] discloses that Ellison has already had far more than three other cases dismissed as frivolous or for failure to state a claim upon which relief may be granted:

Ellison v. Illinois, No. 07-cv-2296 (N.D. Ill. Nov. 9, 2007);
Ellison v. Sheriff of Cook County, No. 09-cv-5438 (N.D. Ill. Feb. 2, 2010); and
Ellison v. U.S. Judicial Exec & Adm. Operations of the Dist. Court, No. 11-cv-1764 (N.D.Ill. March 22, 2011);
Ellison v. Manion, No. 11-cv-2600 (N.D. Apr. 26, 2011);
Ellison v. Joyce, No. 11-cv-2722 (N.D. Ill. ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.