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Johnson v. Dixon

United States District Court, S.D. Illinois

March 3, 2014

LENNIL L. JOHNSON, # 27826, Plaintiff,
v.
ELLEN DAUBER and KAHALAH A. DIXON, Defendants.

MEMORANDUM AND ORDER

MICHAEL J. REAGAN, District Judge.

Plaintiff, currently a detainee at the St. Clair County Jail ("the Jail"), has brought this pro se civil rights action pursuant to 42 U.S.C. § 1983.

I. In Forma Pauperis Motion (Doc. 2)

This matter is before the Court on a motion for leave to proceed in forma pauperis ("IFP") brought by Plaintiff. Plaintiff seeks leave to proceed IFP in this case without prepayment of the Court's usual $400.00 filing fee in a civil case.[1] 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 re Tyler, 110 F.3d 528, 529-30 (8th Cir. 1997).

In this case, Plaintiff has tendered an affidavit of indigence that is 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 discloses the following actions brought by Plaintiff while a prisoner 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 or failed to state a claim: Johnson v. Churchich, et al, Case No. 94-cv-538 (S.D. Ill., dismissed Jan. 25, 1995); Johnson, et al. v. Ohlendorpf, et al, Case No. 95-cv-67 (S.D. Ill., dismissed March 29, 1995); Johnson v. Stanley, et al, Case No. 95-cv-507 (S.D. Ill., dismissed Aug. 7, 1995); Johnson v. Washington, et al, Case No. 95-cv-819 (S.D. Ill., dismissed July 11, 1996); and Johnson v. Elliot, et al, Case No. 00-cv-713 (S.D. Ill., dismissed Jan. 7, 2003). Because Plaintiff has more than three "strikes" for purposes of § 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 Abdul-Wadood v. Nathan, 91 F.3d 1023 (7th Cir. 1996)).

In this case, Plaintiff's complaint, as well as his motion for leave to proceed IFP, are devoid of allegations that might lead the Court to conclude that Plaintiff is under imminent danger of serious physical injury. He claims that Defendants Dauber (a St. Clair County Judge) and Dixon (St. Clair Circuit Court Clerk) have conspired together since January 2003 to deprive him of his real property. Specifically, he claims to have purchased a house located at 20 Kassing Drive, Fairview Heights, Illinois, from Deborah A. Perkins on a contract for deed arrangement for $15, 000, which he paid in full, and she executed a quitclaim deed in his favor. However, Ms. Perkins apparently continued to reside in the home, and sold substantial quantities of drugs there. Defendant Dauber presided over a lawsuit filed by Ms. Perkins against Plaintiff in the Circuit Court of St. Clair County. Because of the drug sales, Ms. Perkins was sentenced to prison and the house in question was forfeited (Doc. 1, p. 14). Plaintiff claims that Defendant Dixon prevented him from filing necessary appeals (Doc. 1, p. 7).

Plaintiff raised the same claim of ownership to this real property in documents he filed in the forfeiture action, which is still pending in this Court. United States v. Real Property Located at 20 Kassing Drive, Fairview Heights, Case No. 13-cv-298-DRH-SCW (Docs. 14, 16, 17, 21, 22, 23). Plaintiff's various motions were stricken or in the alternative denied on February 10, 2014 (Doc. 27 in forfeiture case), and his claims of ownership of the real estate were found to be completely frivolous, false, and fraudulent. Specifically, Chief Judge Herndon noted that in St. Clair County Case No. 03-MR-326 ( Perkins v. Johnson ), Defendant Judge Dauber had found the quitclaim deed to be null and void, and entered judgment against Plaintiff in 2006. Plaintiff did not appeal that judgment. Because Plaintiff knew that he did not have a valid interest in the real property, yet brought his frivolous claim in the forfeiture action, he is under an order to show cause in that action no later than March 10, 2014, why the Court should not impose monetary sanctions upon him (Doc. 27 in forfeiture case).

Plaintiff fails to meet the § 1915(g) requirement to proceed IFP in this case. None of the allegations raised by Plaintiff in this civil rights action remotely involve any physical danger to him, either serious or imminent. Indeed, he does not even attempt to argue that his claim falls within the exception to the three-strike bar. His motion for pauper status (Doc. 2) shall be denied.

II. Merits Review Pursuant to 28 U.S.C. § 1915A

Under § 1915A, the Court is required to dismiss any claims that are frivolous, malicious, fail to state a claim on which relief may be granted, or seek monetary relief from an immune defendant. Applying these standards ...


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