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Allen v. Hanks

United States District Court, S.D. Illinois

May 29, 2014

RODERICK T. ALLEN, # N-94327, Plaintiff,
v.
C/O HANKS, Defendant.

MEMORANDUM AND ORDER

J. PHIL GILBERT, District Judge.

Plaintiff Roderick T. Allen, an inmate in Menard Correctional Center ("Menard"), brings this action for alleged deprivations of his constitutional rights pursuant to 42 U.S.C. § 1983. Plaintiff claims that Defendant Hanks is instigating inmates to attack Plaintiff and also interfering with Plaintiff's ability to access medical services. (Doc. 1). This case is now before the Court for a preliminary review of the complaint pursuant to 28 U.S.C. § 1915A. Plaintiff's complaint bears the heading "Emergency Relief Requested." (Doc. 1). Out of an abundance of caution, the Court will construe the complaint as including a request for a temporary restraining order ("TRO").

Plaintiff has not paid the $400 filing fee, nor has he sought leave to proceed in forma pauperis ("IFP") in this case ( see 28 U.S.C. § 1914(a)). As a matter of course, the Clerk of Court has sent notice that Plaintiff has 30 days to either pay or move for IFP status (see Doc. 2). Regardless, because Plaintiff seeks a TRO, the Court will immediately take up the case. See Wheeler v. Wexford Health Sources, Inc., 689 F.3d 680 (7th Cir. 2012).

Section 1915(g)

The statute that permits a litigant to proceed in forma pauperis, 28 U.S.C. § 1915, 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).

Review of documents filed in the electronic docket of this Court, and on the Public Access to Court Electronic Records ("PACER") website (www.pacer.gov), reveals that Plaintiff has had four cases dismissed as frivolous or for failure to state a claim upon which relief may be granted.[1] See Allen v. Chapman, Case No. 11-cv-1130-MJR (S.D. Ill., dismissed Aug. 29, 2012); Allen v. Godinez, Case No. 12-cv-936-GPM (S.D. Ill., dismissed Oct. 18, 2012); Allen v. Harrington, Case No. 13-cv-725-GPM (S.D. Ill., dismissed Aug. 22, 2013). Allen v. Bower, Case No. 13-cv-931-MJR (S.D. Ill., dismissed Mar. 17, 2013). As such, 28 U.S.C. § 1915(g) bars Plaintiff from proceeding IFP unless he is "under imminent danger of serious physical injury." Despite his multiple strikes, Plaintiff remains undeterred and has filed four new cases in this District, including this one, in the last four months.[2] To date, Plaintiff has not paid the filing fee, nor has he managed to clear the § 1915(g) "imminent danger" hurdle in any of those cases. Therefore, for Plaintiff to proceed with this case in forma pauperis [3] and on his motion for TRO, he must satisfy the Court that he is in imminent danger.

The Complaint

The thrust of Plaintiff's current complaint is that Defendant, Correctional Officer Hanks, has been reassigned to the galley where Plaintiff is presently housed. (Doc. 1, p. 4). Plaintiff claims that he is "in extreme fear of suffering imminent great bodily harm, or death, from another inmate as a direct result of c/o Hanks repeatedly forcing Plaintiff to move into two-man cells." Id. Plaintiff offers a number of reasons why he believes that his personal safety is in jeopardy. In support of his claim against Defendant Hanks, Plaintiff asserts that Hanks has given him "menacing stares" and laughed at Plaintiff "with a sneer expression on his face" when Plaintiff inquired about a medical appointment. Id. These facts alone fail to demonstrate that Plaintiff is in any imminent danger. However, Plaintiff also contends that there have been two incidents in which Defendant Hanks refused to accept Plaintiff's refusal of two-man cell housing, and ordered Plaintiff to be forcibly dragged into a two-man cell. In the first incident, Plaintiff filed an emergency grievance and was moved the next day. In the second incident, Plaintiff filed two emergency grievances and verbally requested to be moved, as well. Id. at 5. Plaintiff's cellmate did, in fact, assault him and caused Plaintiff to suffer a concussion. This incident formed the basis of Plaintiff's complaint in Allen v. Mennenrich, Case No. 14-cv-380-JPG. In an Order dated March 28, 2014, the Court denied Plaintiff's motion for a temporary restraining order in that case and held that at the time of the filing of that complaint, Plaintiff was housed in a one-man cell and, thus, was no longer in imminent danger. ( See Allen v. Mennenrich, Case No. 14-cv-380-JPG, Doc. 4). However, shortly thereafter, on April 9, 2014, Plaintiff alleges he was again forced into a two-man cell. ( Allen v. Hanks, Doc. 1, p. 7). Plaintiff complained and was subsequently transferred into a single-man cell. Presently, it appears that Plaintiff is in a single-man cell in segregation, but Plaintiff fears that he will be transferred, once again to a two-man cell.

Imminent Danger

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)).

Although the bar for establishing imminent danger is indeed high, it is not insurmountable. In Lewis v. Sullivan , the Seventh Circuit cautioned that for § 1915(g) to "serve its role as an escape hatch for genuine emergencies" it must be "understood reasonably." Lewis v. Sullivan, 279 F.3d 526, 531 (7th Cir. 2002). The court in Lewis went on to explain:

If limited to situations in which, say, a beating is ongoing, no prisoner will find solace; once the beating starts, it is too late to avoid the physical injury; and once the beating is over the prisoner is no longer in "imminent danger".... Reading the imminent-danger ...

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