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Dickerson v. Vienna Correctional Center

United States District Court, Seventh Circuit

July 8, 2013

BOBBY LEE DICKERSON, No. M35352, Plaintiff,


MICHAEL J. REAGAN, District Judge.

Plaintiff Bobby Lee Dickerson, Jr., is currently incarcerated at Vienna Correctional Center ("Vienna"). Plaintiff brings this pro se civil rights action pursuant to 42 U.S.C. § 1983 and the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 1346, 2671-2680 (Doc. 1). Plaintiff takes issue with the conditions of his confinement and his medical care, both of which allegedly pose an imminent, ongoing risk of serious physical injury. More specifically, Dickerson contends that the asbestos in the ceilings at Vienna is killing him and, at a minimum, aggravating his asthma. Plaintiff also claims that there was delay in getting him an emergency inhaler, thereby endangering his life. "Vienna Correctional Center" and "Medical Care at Vienna Correctional Center" are the named defendants.

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).[1] He also recently filed three motions. First, Plaintiff seeks leave to amend the complaint to add a claim against five named prison officials who have retaliated against Plaintiff for filing suit(s) by issuing baseless disciplinary tickets and ultimately meting out punishment (Doc. 6). Second, he moves to strike "against" the defendants for "lacking a time schedule order, " pursuant to 42 U.S.C. § 1990 (Doc. 7). Third, Plaintiff moves for default judgment against the defendants for failing to respond to his complaint (Doc. 8).

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.

1. 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 (, 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). In addition, on June 20, 2013, an additional strike was assessed in Dickerson v. China, No. 13-cv-498-JPG (S.D. Ill. June 20, 2013).

Dickerson has also failed to disclose his full litigation history. He references only Dickerson v. Bergland, No. 13-cv-461-MJR (S.D. Ill. Filed May 15, 2013), and he makes no mention of his extremely lengthy litigation history in the Western District of Washington (which includes three of the four 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). The Court has warned Plaintiff on other recent occasions, so dismissal as a sanction would certainly be appropriate; however, in this situation, there are additional considerations that merit discussion.

Because Plaintiff has at least 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 suffers from certain infirmities, and without regard to the merits of each claim, 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. 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. Payment will be directed by separate order.

2. Discussion

Based on the allegations of the complaint, the Court finds it convenient to divide the pro se complaint into two counts. The parties and the Court will use these designations in all future pleadings and orders, unless otherwise directed by a judicial officer of this Court. The ...

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