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Cordrey v. Harrington

United States District Court, S.D. Illinois

February 25, 2014

JOHNNY R. CORDREY, # N-81774, Plaintiff,
v.
RICHARD HARRINGTON, et al., Defendants.

MEMORANDUM AND ORDER

MICHAEL J. REAGAN, District Judge.

Plaintiff, currently incarcerated at Menard Correctional Center ("Menard"), has brought this pro se civil rights action pursuant to 42 U.S.C. § 1983.

This matter is before the Court on Plaintiff's motion for leave to proceed in forma pauperis ("IFP") (Doc. 2), filed along with his complaint on January 31, 2014.

I. Motion for Leave to Proceed IFP (Doc. 2)

Plaintiff seeks leave to proceed IFP in this case without prepayment of the Court's usual $400.00[1] filing fee in a civil case. See 28 U.S.C. § 1914(a). Pursuant to 28 U.S.C. § 1915, 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). If IFP status is granted, a prisoner is assessed an initial partial filing fee according to the formula in 28 U.S.C. § 1915(b)(1)(A)-(B). Thereafter, 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). This monthly payment must be made 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 this case, Plaintiff has tendered an affidavit of indigence, along with records of his inmate trust fund account showing that he has a negative balance of over $3, 700.00 because of numerous legal postage and copying charges advanced to him by the prison. The motion and affidavit are sufficient as to form, but this is not the end of the matter. Pursuant to 28 U.S.C. § 1915A, a district 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." 28 U.S.C. § 1915A(a). The statute provides further that, "[o]n review, the court shall identify cognizable claims or dismiss the complaint, or any portion of the complaint, if the complaint... is frivolous, malicious, or fails to state a claim upon which relief may be granted[.]" 28 U.S.C. § 1915A(b)(1). Under 28 U.S.C. § 1915,

In 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). 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 the Public Access to Court Electronic Records ("PACER") website (www.pacer.gov), discloses the following actions brought by Plaintiff during his imprisonment seeking redress from officers or employees of a governmental entity, that have been dismissed pursuant to 28 U.S.C. § 1915A on the grounds that they were frivolous, malicious, or failed to state a claim upon which relief may be granted: Cordrey v. Washington, et al., Case No. 96-cv-2780 (N.D. Ill., dismissed December 15, 1997); Cordrey v. Washington, et al., Case No. 97-cv-50091 (N.D. Ill., dismissed April 2, 1997); Cordrey v. Edgar, et al., Case No. 98-cv-1389 (C.D. Ill., December 6, 1999); Cordrey, et al. v. Snyder, et al., Case No. 99-cv-4458 (N.D. Ill., dismissed July 27, 1999); Cordrey v. Amdor, et al., Case No. 00-cv-1137 (C.D. Ill., dismissed June 6, 2000); Cordrey v. Snyder, et al., Case No. 03-500 (S.D. Ill., dismissed February 28, 2005); and Cordrey v. Walker, et al., Case No. 05-cv-395 (S.D. Ill., dismissed December 15, 2006).

Plaintiff has accumulated well over three "strikes" for purposes of § 1915(g). He thus may not proceed IFP in any newly-filed case unless he is under imminent danger of serious physical injury. After he incurred the most recent "strike" listed above ( Cordrey v. Walker, et al., Case No. 05-cv-395 (S.D. Ill.)), Plaintiff filed four additional actions in this Court: Cordrey v. Hulick, et al., Case No. 07-cv-870-JPG; Cordrey v. Rednour, et al., Case No. 10-cv-848-MJR; Cordrey v. Atchison, et al., Case No. 13-cv-104-JPG; and Cordrey v. Harrington, et al., Case No. 13-cv-1267-MJR. In each of these cases, he asserted that he faced serious and imminent physical danger, but each time, the Court found that his claims did not meet that standard and denied him leave to proceed IFP. When Plaintiff failed to pre-pay the filing fee, each of these cases was dismissed.

Notably, when instructed in the instant complaint to list his previous lawsuits, Plaintiff listed only his most recent action ( Cordrey v. Harrington, et al., Case No. 13-cv-1267-MJR), and omitted any mention of his numerous prior cases. This failure alone, as the Court's form complaint warns, is grounds for dismissal of the instant action. See Hoskins v. Dart, 633 F.3d 541, 543 (7th Cir. 2011) (dismissal of suit is appropriate where Court-issued complaint form clearly warned Plaintiff that failure to provide litigation history would result in dismissal). Out of an abundance of caution, however, the Court shall review the complaint in light of § 1915(g).

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 Abdul-Wadood v. Nathan, 91 F.3d 1023 (7th Cir. 1996)).

In his complaint, Plaintiff recites some of the facts he alleged in Case No. 13-cv-1257, in which he claimed he was in imminent danger of an assault from his mentally ill cellmate, David Miller (Doc. 1, p. 5). As it turned out, Plaintiff was found guilty of assaulting Miller on December 15, 2013, after admitting that he struck Miller in the head with his fist multiple times (Doc. 1, p. 12). Plaintiff is serving three months in disciplinary segregation for that infraction.

Following his assault on Miller, Plaintiff was briefly housed in a single cell, but then was moved to several different double cells. He had no objections to being housed with white cellmates (Plaintiff is white), but when he was placed on January 15, 2014, with a Black cellmate (Adkins), he began to complain of perceived danger (Doc. 1, p. 5). Plaintiff had been injured at the hands of Black inmates at Stateville Correctional Center in 1995 and at Pontiac Correctional Center in 2009. He asserts that because of those incidents, ...


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