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Allen v. J. Engelage

United States District Court, S.D. Illinois

July 6, 2015

RODERICK T. ALLEN, #N84327, Plaintiff,
v.
J. ENGELAGE and C/O REYNOLDS, Defendants.

MEMORANDUM AND ORDER

MICHAEL J. REAGAN, District Judge.

This matter comes before the Court for consideration of Plaintiff Roderick Allen's motion for leave to proceed in forma pauperis ("IFP") (Doc. 6). Plaintiff has accumulated more than three "strikes" by filing lawsuits that were dismissed for failure to state a claim upon which relief may be granted or for raising frivolous claims.[1] Under the circumstances, he may not proceed IFP in a new civil action, unless he faces imminent danger of serious physical injury. See 28 U.S.C. § 1915(g). In order to make this determination, the Court normally reviews the IFP motion and the complaint.

The Court has been unable to do so to date. Shortly after Plaintiff filed his complaint on February 19, 2015 (Doc. 1), he filed a motion to withdraw it on March 9, 2015 (Doc. 3). The Court granted Plaintiff's motion and ordered him to file an amended complaint on or before April 15, 2015 (Doc. 4). Although Plaintiff filed his IFP motion on March 20, 2015, the motion did not mention imminent danger.

Plaintiff requested three extensions of the deadline to file his amended complaint (Docs. 5, 8, 10). The Court granted his first two requests (Docs. 7, 9), but denied the third (Doc. 11). Under the second extended deadline, Plaintiff's amended complaint was due on or before June 19, 2015 (Doc. 12). The Court received the amended complaint from Menard on June 25, 2015. Because Plaintiff's affidavit of service indicates that he placed the pleading in the institutional mail on June 19, 2015, the Court will accept the amended complaint as timely under the prison mailbox rule (Doc. 12, p. 18).[2] See Taylor v. Brown, ___ F.3d ___, 2014 WL 9865341, at *6 (7th Cir. Jun. 2, 2015).

The IFP motion is now ripe for review. However, Plaintiff's amended complaint and IFP motion support no finding that Plaintiff faces imminent danger of serious physical injury. Section 1915(g) therefore precludes Plaintiff from proceeding IFP in this case, and the IFP motion shall be DENIED.

Discussion

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 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 submitted an affidavit of indigence that is sufficient as to form.

Even so, Plaintiff is barred from proceeding IFP. See 28 U.S.C. § 1915(g). According to Section 1915(g), 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.

When asked whether he had "begun any other lawsuits in state or federal court relating to [his] imprisonment, " Plaintiff disclosed ten lawsuits that he filed in this District (Doc. 1, p. 3). He mentioned filing "several other lawsuits" without providing any details. Id. In fact, Plaintiff has filed eighteen lawsuits and/or appeals since 2011.[3] See Bova v. U.S. Bank, N.A., 446 F.Supp.2d 926, 930 n. 2 (S.D. Ill. 2006) (a court may judicially notice public records available on government websites) (collecting cases); Henson v. CSC Credit Servs., 29 F.3d 280, 284 (7th Cir. 1994). According to the Public Access to Court Electronic Records ("PACER") website (www.pacer.gov), five of the twelve lawsuits that Plaintiff filed in this District resulted in the assessment of a "strike" because the suits were dismissed as frivolous, malicious, or for failure to state a claim. See Allen v. Chapman, et al., Case No. 11-cv-1130-MJR (S.D. Ill., dismissed Aug. 29, 2012); Allen v. Godinez, et al., 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, et al., Case No. 13-cv-931-MJR (S.D. Ill., dismissed Mar. 17, 2014); and Allen v. Chapman, Case No. 14-cv-348-JPG (S.D. Ill., dismissed Jun. 24, 2014).[4] Because Plaintiff has incurred more than three "strikes" for purposes of Section 1915(g), he may not proceed IFP in this case unless his 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 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 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 does not claim to be in imminent danger in his IFP motion (Doc. 6). Plaintiff's amended complaint supports no such finding (Doc. 12). In it, Plaintiff alleges that two correctional officers at Menard Correctional Center ("Menard"), i.e., C/O Engelage and C/O Reynolds, denied Plaintiff exercise opportunities and adequate nutrition.

The denial of adequate exercise opportunities can result in serious health consequences that give rise to an Eighth Amendment claim. See, e.g., Delaney v. DeTella, 256 F.3d 679, 684 (7th Cir. 2001) (inmate denied yard access for six months suffered constitutional deprivation); Pearson v. Ramos, 237 F.3d 881, 884-85 (7th Cir. 2001) (denial of yard privileges for more than ninety days may be cognizable under Eighth Amendment); see also Perkins v. Kan. Dep't of Corr., 165 F.3d 803, 810 (10th Cir. 1999) (nine month denial of outdoor exercise states Eighth Amendment claim). Likewise, the denial of a nutritionally adequate diet can support an Eighth Amendment claim against those officials who are responsible for the deprivation. See, e.g., Sanders v. Sheahan, 198 F.3d 626 (7th Cir. 1999) (nutritionally inadequate food resulting in malnutrition supported claim); Antonelli v. Sheahan, 81 F.3d 1422, 1432 (7th Cir. 1996) (reversing dismissal of pro se prisoner's claim that he received "not just ran[c]id food" but also a "nutritionally deficient" diet). Whether these deprivations support a finding that a plaintiff faces imminent danger of serious physical injury is another question.

And as for Plaintiff's claim that he was denied adequate exercise opportunities, this is a question that the Court cannot answer. Given obviously conflicting allegations, the Court cannot assess the scope of the deprivation or its urgency. On the one hand, Plaintiff alleges that "[w]ith only one exception (Nov. 25, 2011), Plaintiff has never been allowed outside of the cell in which he is housed for outdoor exercise" (Doc. 12, p. 6). On the other hand, Plaintiff goes on to allege that "the denial of outdoor yard was not consist[e]nt but did occur" between March and April 2015 (Doc. 12, p. 14). He further alleges that since April 2015, C/O Dunbar has denied him access to outside yard, but does not allege that other officers did the same (including either C/O Engelage or C/O Reynolds). Given this conflicting information, the Court cannot determine the extent of the deprivation or analyze the dangers it poses to Plaintiff's physical health. Plaintiff's additional failure to address in-cell exercise opportunities adds nothing to his claim of imminent danger.

What is more, the amended complaint does not mention C/O Engelage in connection with the claim at all. C/O Reynolds is mentioned only once. According to the allegations, C/O Reynolds was "the first gallery officer" to deny Plaintiff outdoor yard in 2011, based solely on his refusal to submit to a tuberculosis skin test (Doc. 12, p. 14). Whether C/O Reynolds denied Plaintiff access to outdoor yard more than once is unclear. What is clear is that a denial of outdoor yard occurring four years ago is too remote to support a finding of ...


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