United States District Court, S.D. Illinois
MAURICE J. McDONALD, #B-42547, Plaintiff,
UNITED STATES CONGRESS, UNITED STATES SENATE, and UNITED STATES HOUSE OF REPRESENTATIVES, Defendants.
MEMORANDUM AND ORDER
MICHAEL J. REAGAN, District Judge.
This matter is before the Court on a motion for leave to proceed in forma pauperis ("IFP") brought by Plaintiff (Doc. 2). Plaintiff, an inmate at Menard Correctional Center ("Menard"), seeks leave to proceed IFP in this case without prepayment of the Court's usual $400.00 filing fee in a civil case. See 28 U.S.C. § 1914(a). Based on the prior dismissal of numerous frivolous lawsuits,  Plaintiff has accumulated well over three "strikes." Therefore, under 28 U.S.C. § 1915(g), he is not allowed to proceed in forma pauperis ("IFP") in a new civil action unless he is "under imminent danger of serious physical injury."
The Complaint (Doc. 1)
Plaintiff filed this pro se civil rights action pursuant to 42 U.S.C. § 1983 on April 30, 2014 (Doc. 1). He names both Houses of the United States Congress as Defendants. Plaintiff's complaint is virtually incoherent. He seems to challenge the constitutionality of the fee provision and "three strikes" provision of the Prison Litigation Reform Act ("PLRA"), 28 U.S.C. § 1915(b), (g) (Doc. 1, p. 3). He claims that the PLRA's filing fee requirements are discriminatory and result in "extortion and blackmail" of prisoners (Doc. 1, pp. 3-4). He further argues that the requirement for prepayment of filing fees by prisoner-plaintiffs who have incurred three or more "strikes" for filing actions that are frivolous, malicious, or fail to state a claim, but who face no imminent danger of serious physical harm, violates the constitution. Plaintiff also mentions a cure for "multiple blood borne diseases" that are "about to be lost to the world community" (Doc. 1, p. 5). Finally, Plaintiff claims that undue delays in another § 1983 action have caused him to suffer "brain damage" (Doc. 1, pp. 3-6). He now sues Congress for compensatory damages, declaratory judgment, and injunctive relief (Doc. 1, p. 6).
Motion for Leave to Proceed IFP (Doc. 2)
Plaintiff seeks leave to proceed IFP in this case. 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). Plaintiff's affidavit appears to meet these basic requirements.
However, the IFP motion fails on its merits. According to 28 U.S.C. § 1915, a prisoner may not bring a civil action or appeal a civil judgment "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). Section 1915(g) requires that this Court consider prisoner actions dismissed prior to, as well as after, the PLRA's enactment. See Evans v. I.D.O.C., 150 F.3d 810, 811 (7th Cir. 1998); Abdul-Wadood v. Nathan, 91 F.3d 1023 (7th Cir. 1996).
The Court is aware of at least a dozen cases where Plaintiff was assessed a "strike" under § 1915(g) by Courts in the Seventh Circuit. As discussed in more detail below, Plaintiff has incurred more than three "strikes" in this district alone. Therefore, under § 1915(g), he may not proceed IFP in this case unless he is in imminent danger of serious physical injury.
Plaintiff has not satisfied this requirement. 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)). There must be an adequate nexus, "fairly traceable" between imminent harm and the legal claims. Pettus v. Morgenthau, 554 F.3d 293, 298-99 (2d Cir. 2009). 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, 91 F.3d 1023 (7th Cir. 1996)).
Plaintiff does not claim to be in imminent danger of serious physical harm in his IFP Motion or his complaint. In fact, he does not mention imminent danger at all in the IFP Motion. He also includes no allegations in the IFP Motion suggesting that he faces any immediate harm.
Turning to the complaint, the Court also finds no indication that Plaintiff is in imminent danger of serious physical harm. He challenges the PLRA's fee provision, which Plaintiff claims is discriminatory and results in "extortion and blackmail" of prisoners (Doc. 1, p. 3). He also challenges the constitutionality of the "three strikes" provision. He sues Congress, essentially arguing for new legislation waiving the filing fee requirements for prisoners, regardless of the "strikes" they have incurred or the lack of imminent danger they have demonstrated. Certainly, this constitutional challenge does not give rise to an inference that Plaintiff is in imminent danger of serious physical harm.
And although Plaintiff claims to have suffered brain damage that rendered him unable to prepare his complaint without assistance, Plaintiff goes on to blame a magistrate judge and perceived delays in a pending lawsuit for the injury (Doc. 1, p. 6). He includes no other details regarding the alleged injury. The Court finds Plaintiff's claims to be completely devoid of merit and even ridiculous. Plaintiff has not shown any imminent danger that would allow him to proceed IFP in this action despite his "strikes." See 28 U.S.C. § 1915(g). Accordingly, his IFP Motion shall be DENIED.
Merits Review Pursuant to 28 U.S.C. § 1915A
When leave to proceed IFP is denied, a prisoner-plaintiff is ordinarily allowed to carry on with an otherwise meritorious action if he pre-pays the full filing fee. However, the instant complaint fails to survive the initial merits review required by 28 U.S.C. § 1915A. Under § 1915A, the Court is required to dismiss any claims that are frivolous, malicious, fail to ...