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Banks v. Muhammad

United States District Court, Seventh Circuit

October 15, 2013

LARRY M. BANKS, Plaintiff,
v.
DR. MUHAMMAD, NURSE PRICE, and NURSE PATEL, Defendants.

MEMORANDUM OPINION AND ORDER

MATTHEW F. KENNELLY, District Judge.

Larry Banks filed this pro se lawsuit in April 2012. At the time, Banks was a pretrial detainee at the Cook County Jail. He alleged inadequate treatment for a medical condition, specifically asthma. Banks advised the Court that he had "struck out" pursuant to the Prison Litigation Reform Act, 28 U.S.C. ยง 1915(g), due to dismissals of prior lawsuits, but he contended that he was in "imminent danger of serious physical harm" and thus should be allowed to proceed in forma pauperis ( i.f.p. ). The Court noted in an initial order that Banks still needed to file an i.f.p. application, and the Court also found his complaint deficient. See Order of June 11, 2012 (dkt. no. 6).

In July 2012, Banks filed an amended complaint, an i.f.p. application, and a motion seeking a finding that he could proceed under section 1915(g)'s imminent danger provision. Banks's i.f.p. application, received by the clerk on July 5, 2012, stated that during the previous twelve months, he had not received more than $200 from any of a number of listed sources, including gifts, or from "Any other sources, " a catch-all category at the conclusion of the list of sources of funds. Banks signed the form under penalty of perjury, on June 29, 2012.

The Court found that Banks had sufficiently alleged that he was in imminent danger of serious physical injury and granted his i.f.p. motion, finding it sufficient. The Court also found Banks's amended complaint sufficient to allow him to proceed against three defendants, whom he identified as Dr. Patel, Dr. Muhammad, and Nurse Price. See Order of Aug. 13, 2012 (dkt. no. 10).

Once the defendants were served with summons, they moved for reconsideration of the Court's imminent danger finding, providing medical records that they argued established that Banks had received his asthma medication regularly (even if not 100 percent of the time) and had no recent asthma attacks. The Court found that "the record demonstrates that there was no real and proximate' threat of continuing or future injury and no genuine emergenc[y], ' and this was not a situation in which time [was] pressing' at the time Banks filed suit." Order of Dec. 14, 2012 (dkt. no. 35). The Court concluded that defendants had demonstrated "that Banks' claim that he was in imminent danger at the time he filed suit was false." Id. As a result, the Court ordered Banks to pay the remainder of the filing fee in full by a date certain or face dismissal of his lawsuit without prejudice for failure to pay the filing fee. Banks paid the remainder of the filing fee - $320.99 - a little under three weeks later, on January 2, 2013. The case then proceeded ahead.

In March 2013, in Case No. 12 C 5726, a separate case that Banks had filed against personnel at the Cook County Jail, the Court entered an order on its own motion, directing Banks to show cause why his i.f.p. status in that case should not revoked. The Court relied in part on Banks' prompt payment of the full filing fee in this case. The Court stated, in relevant part, as follows:

This District's Local Rule 40.3(b)(1) requires all of Petitioner's conditions of confinement cases to be assigned to this Court. The Court's recent experience with Plaintiff's other conditions of confinement cases has [led] the Court to reexamine its IFP ruling in this case.
In this case, to support his IFP petition, Plaintiff claimed that he was impoverished. (Dkt. No. 5). His jail trust fund account ledger attached in support of his IFP motion showed that his account contained only a few dollars and had $780 in deposits in the six months leading up to the filing of the present case. (Dkt. No. 5). Plaintiff had spent the money at the jail commissary, depleting the account. Plaintiff did not disclose any other assets.
Despite the claim of poverty, a review of the docket shows that Plaintiff was able to pay the $350 filing fee in three other cases, Banks v. Cook County, No. 11 C 6113 (N.D. Ill.), Banks v. Cook County, No. 12 C 2341 (N.D. Ill.), Banks v. Cook County, No. 12 C 3833 (N.D. Ill.). These fee payments were made at the same time that Plaintiff was representing in this case that he was impoverished and lacked any assets to pay the filing fee. In addition, Plaintiff recently paid the full filing fee in Banks v. Muhammad, No. 12 C 2493 (N.D. Ill.). It thus appears that Plaintiff has a source of income that he is using to pay filing fees that is not disclosed on his jail trust fund account ledger and that he did not disclose on the IFP application that he filed in this case. The Court is inclined, based on this evidence, to revisit its IFP ruling and revoke Plaintiff's IFP status on the ground that he is able to pay the filing fee in this case. The Court therefore orders Plaintiff to cause why his IFP status should not be revoked.

Banks v. Kilder, No. 12 C 5726, Order of Mar. 20, 2013.

On April 29, 2013, after Banks had responded to the Court's order in Case No. 12 C 5726, the Court issued a decision in which it dismissed the case with prejudice due what the Court concluded was Banks' fraud on the Court. See Banks v. Cook County Municipality, No. 12 C 5726, 2013 WL 1828900 (N.D. Ill. Apr. 29, 2013). The Court reaffirms and adopts that decision in full.

In its decision dismissing Case No. 12 C 5726. the Court summarized as follows Banks's response to the Court's order to show cause in that case:

In response to the Court's March 20, 2013 order directing him to show cause why his IFP status should not be revoked, Mr. Banks explained his payment of these fees as follows:
Plaintiff gives the reason why he's able to pay the above IFP (in forma pauperis application), and the reason why he's able to survive while incarcerated in Cook County Jail, because of the Moorish ...

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