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Wallace v. S. A. Godinez

United States District Court, S.D. Illinois

April 3, 2015



STACI M. YANDLE, District Judge.

This matter is before the Court for consideration of Plaintiff Maurice Wallace's motion for leave to proceed in forma pauperis (Doc. 2) and for general case management. Plaintiff Wallace, who is currently incarcerated at Menard Correctional Center ("Menard"), filed this civil rights action pro se pursuant to 42 U.S.C. § 1983. He also filed a motion seeking leave to proceed in forma pauperis ("IFP motion") without prepayment of the Court's usual $400.00[1] filing fee in a civil case (Doc. 2). However, Plaintiff Wallace has "struck out" by filing three or more lawsuits that were dismissed as frivolous or for failure to state a claim. See 28 U.S.C. § 1914(a). Therefore, he cannot proceed IFP in this action unless the complaint demonstrates that he faces imminent danger of serious physical injury. The complaint suggests no such thing. Accordingly, Plaintiff Wallace's IFP motion shall be denied, and he must prepay the full $400.00 filing fee before he can proceed.

Plaintiff Wallace is not the only plaintiff in this action. He is designated as the lead plaintiff because he is the only individual who has filed signed pleadings with the Court. The complaint also lists eight non-lead plaintiffs[2] (Doc. 1). None of the non-lead plaintiffs signed the complaint, provided identifying information, [3] paid a filing fee for this action, or filed an IFP motion. The Court has entered multiple orders requiring them to do so, if they intend to proceed with their claims in this action (Docs. 4, 11). To date, they have not communicated with the Court regarding their intentions. By all indications, the non-lead plaintiffs do not intend to proceed alongside Plaintiff Wallace with their claims in this action. However, out of an abundance of caution, the Court will grant the non-lead plaintiffs one last opportunity to participate in this litigation before dismissing them.

IFP Status: Plaintiff Wallace

Plaintiff Wallace filed a motion seeking leave to proceed in forma pauperis ("IFP") without prepayment of the full filing fee in this action. 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 Wallace has tendered an affidavit of indigence that is insufficient as to form, as it attempts to address the financial status of all plaintiffs who are listed in the case caption (Doc. 2). He has also not provided the Court with a certified trust fund account statement that shows the balance of Plaintiff Wallace's trust fund account for the six month period immediately preceding the filing of this action.

Regardless, Plaintiff is barred from proceeding IFP by 28 U.S.C. § 1915(g). According to § 1915, a prisoner may not bring a civil action or appeal a civil judgment in forma pauperis "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's IFP motion must be denied on these grounds.

In his IFP motion and the complaint, Plaintiff Wallace omitted reference to his prior strikes. Despite this fact, the Court has reviewed public records and can take judicial notice of them. See Henson v. CSC Credit Servs., 29 F.3d 280, 284 (7th Cir. 1994). Review of documents filed on the Public Access to Court Electronic Records ("PACER") website ( reveals that Plaintiff has, in fact, filed multiple lawsuits that were dismissed as being frivolous, malicious, or for failure to state a claim and resulted in the accumulation of at least three "strikes."[4]

Because Plaintiff has accumulated 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. Plaintiff has failed to satisfy this requirement. The United States Court of Appeals for the Seventh Circuit has explained that "imminent danger" within the meaning of § 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)).

Plaintiff Wallace does not claim to be in imminent danger in his IFP motion (Doc. 2) or the complaint (Doc. 1). Neither pleading suggests that Plaintiff personally faces any threat of serious physical injury. Plaintiff Wallace filed the complaint on behalf of "all inmates who are currently or have been subjected to one or more of the violative conditions discussed" in the pleading (Doc. 1, p. 1). Although the pleading categorizes the claims into six separate "counts, " vague references to many more constitutional violations are included throughout the complaint.[5] Few are specific to Plaintiff Wallace, [6] and none suggest that he faces impending harm. Having made no showing of imminent danger, Plaintiff cannot proceed in forma pauperis in this action.

Under normal circumstances, the denial of an IFP motion does not preclude a prisoner from litigating his claims. It simply means that he must first pay the entire filing fee for the action ($400.00) before proceeding to the next stage of litigation (i.e., preliminary review of the complaint under 28 U.S.C. § 1915A). This is not a typical case. It is necessary to consider the imposition of sanctions.

Sanctions: Plaintiff Wallace

Plaintiff failed to disclose his prior "strikes" (Docs. 1-2). The Court-issued complaint form explicitly states, "If there is more than one lawsuit, you must describe the additional lawsuits on another sheet of paper.... Failure to comply with this provision may result in summary denial of your complaint" (Doc. 1, p. 3). Although Plaintiff did not use this form or the standard IFP motion, Plaintiff has repeatedly filed lawsuits in this Court, received strikes, and faced IFP denials and/or revocation on this basis. The Court has made him well aware of the three strikes hurdle to further litigation, and now finds that Plaintiff Wallace's failure to disclose his prior strikes represents an attempt to deceive the Court and waste precious judicial resources.

A plaintiff's failure to disclose his litigation history, particularly when he seeks to proceed IFP, may be grounds for immediate dismissal of the suit. Ammons v. Gerlinger, 547 F.3d 724, 725 (7th Cir. 2008) (termination of the suit is an appropriate sanction for struck-out prisoner who took advantage of court's oversight and was granted leave to proceed IFP); Sloan v. Lesza, 181 F.3d 857, 858-59 (7th Cir. 1999) (litigant who sought and obtained leave to proceed IFP without disclosing his three-strike status committed a fraud upon the court); see also Hoskins v. Dart, 633 F.3d 541, 543 (7th Cir. 2011) (dismissal with prejudice appropriate where Court-issued complaint form clearly warned Plaintiff that failure to provide litigation history would result in ...

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