United States District Court, S.D. Illinois
MICHAEL S. BANKS, # A-86938, Plaintiff,
DARREN T. WHITLEY, DAN LIEFER, JAMES BOKERT, BRANDON M. ANTHONY, MIHN T. SCOTT, and DAVID A. REDNOUR, Defendants.
MEMORANDUM AND ORDER
NANCY J. ROSENSTENGEL, District Judge.
This matter is before the Court for review of Plaintiff's complaint (Doc. 1) and his motion for leave to proceed in forma pauperis ("IFP motion") (Doc. 2). Plaintiff has accumulated more than three "strikes" by filing lawsuits in federal court that were dismissed for failure to state a claim upon which relief may be granted. Under the circumstances, he may not proceed in forma pauperis in a new civil action unless he is under imminent danger of serious physical injury. See 28 U.S.C. § 1915(g). Plaintiff's pleadings describe no such threat, and his complaint lacks merit. For the reasons set forth below, the pending IFP motion shall be denied, and the case shall be dismissed.
Plaintiff filed this lawsuit pursuant to 42 U.S.C. § 1983 on November 6, 2014 (Doc. 1). In the complaint, he names six officials at Menard Correctional Center ("Menard") as defendants. However, the complaint includes no allegations of wrongdoing against these officials (Doc. 1, pp. 7-8).
Instead, Plaintiff alleges that he filed a civil rights action pursuant to 42 U.S.C. § 1983 in Illinois state court against these defendants on February 15, 2013 (Doc. 1, p. 7). Defendants filed a motion to dismiss the action on September 12, 2013. The state circuit court granted the motion, but allegedly failed to provide Plaintiff with proper notification of its decision.
Plaintiff appealed the decision on January 17, 2014. On appeal, the Illinois Court of Appeals for the Fifth District set a deadline of March 21, 2014, for filing the record on appeal. When Plaintiff requested leave to proceed in forma pauperis on appeal on January 29, 2014, he also requested a free copy of the record. The state appellate court denied Plaintiff's request for a free copy of the record. He failed to produce a copy for filing, and the state appellate court ultimately dismissed his appeal for want of prosecution on April 22, 2014 (Doc. 1, p. 8).
In the complaint now before this Court, Plaintiff claims that this decision to deny him a free copy of the record on appeal violated his right to due process of law. According to Plaintiff, the decision also resulted in a miscarriage of justice. Plaintiff maintains that he is now entitled to judgment against Defendants or, in the alternative, remand of his underlying case to the state circuit court for a trial on the merits (Doc. 1, p. 9).
Motion for Leave to Proceed IFP (Doc. 2)
In his IFP motion (Doc. 2), Plaintiff seeks leave to proceed in this case without prepayment of the Court's usual $400.00filing fee in a civil case. See 28 U.S.C. § 1914(a). Pursuant to Section 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).
Plaintiff's IFP motion and affidavit are sufficient as to form. However, the Court's inquiry does not end there. According to Section 1915:
[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). Plaintiff cannot clear this hurdle.
As noted earlier, Plaintiff has incurred more than three "strikes" by filing lawsuits that were dismissed under Section 1915A for failure to state a claim upon which relief may be granted. See, e.g., Banks v. Roth, et al., Case No. 91-cv-3410 (N.D. Ill., dismissed June 28, 1991); Banks v. Devine, et al., Case No. 02-cv-4271 (N.D. Ill., dismissed June 21, 2002); Banks v. Crane, et al., Case No. 02-cv-4269 (N.D. Ill., dismissed June 24, 2002); Banks v. Gallagher, et al., Case No. 02-cv-4156 (N.D. Ill., dismissed July 23, 2003). Because Plaintiff has accumulated more than three "strikes" for purposes of Section 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 Section 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 ...