United States District Court, S.D. Illinois
MEMORANDUM AND ORDER
J. PHIL GILBERT, District Judge.
Plaintiff, currently incarcerated at Menard Correctional Center ("Menard"), has brought this pro se civil rights action pursuant to 42 U.S.C. § 1983.
This matter is before the Court on a motion for leave to proceed in forma pauperis ("IFP") brought by Plaintiff (Doc. 2). Plaintiff 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). 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). If IFP status is granted, a prisoner is assessed an initial partial filing fee according to the formula in 28 U.S.C. § 1915(b)(1)(A)-(B). Thereafter, a prisoner is required to make monthly payments of twenty percent of the preceding month's income credited to the prisoner's trust fund account. See 28 U.S.C. § 1915(b)(2). This monthly payment must be made each time the amount in the account exceeds $10.00 until the filing fee in the case is paid. See id. Importantly, a prisoner incurs the obligation to pay the filing fee for a lawsuit when the lawsuit is filed, and the obligation continues regardless of later developments in the lawsuit, such as denial of leave to proceed IFP or dismissal of the suit. See 28 U.S.C. § 1915(b)(1), (e)(2); Lucien v. Jockisch, 133 F.3d 464, 467 (7th Cir. 1998); In re Tyler, 110 F.3d 528, 529-30 (8th Cir. 1997).
In this case, Plaintiff has tendered an affidavit of indigence that is sufficient as to form, but this is not the end of the matter. Pursuant to 28 U.S.C. § 1915A, a district court "shall review, before docketing, if feasible or, in any event, as soon as practicable after docketing, a complaint in a civil action in which a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity." 28 U.S.C. § 1915A(a). The statute provides further that, "[o]n review, the court shall identify cognizable claims or dismiss the complaint, or any portion of the complaint, if the complaint... is frivolous, malicious, or fails to state a claim upon which relief may be granted[.]" 28 U.S.C. § 1915A(b)(1). Under 28 U.S.C. § 1915,
In 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). Court documents are, of course, public records of which the Court can take judicial notice. See Henson v. CSC Credit Servs., 29 F.3d 280, 284 (7th Cir. 1994).
Review of documents filed in the electronic docket of this Court discloses the following actions brought by Plaintiff while a prisoner seeking redress from officers or employees of a governmental entity that have been dismissed pursuant to 28 U.S.C. § 1915A on the grounds that they were frivolous, malicious, or failed to state a claim upon which relief may be granted: Williams v. Mitchell, et al, Case No. 93-cv-741-WLB (S.D. Ill., dismissed Oct. 6, 1994 as frivolous); Williams v. Peters, et al, Case No. 94-cv-365-JPG (S.D. Ill., dismissed March 8, 1995 as frivolous); Williams v. Inman, et al, Case No. 94-cv-669-WDS (S.D. Ill., dismissed Feb. 27, 1995 as frivolous); and Williams v. Reese, et al, Case No. 96-cv-734-WLB (S.D. Ill., dismissed March 18, 1997 as frivolous). Because Plaintiff has four "strikes" for purposes of § 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 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)).
In this case, Plaintiff's 44-page complaint, as well as his motion for leave to proceed IFP, are devoid of allegations that might lead the Court to conclude that Plaintiff is under imminent danger of serious physical injury. The lengthy and repetitive complaint includes claims against the public defenders who represented Plaintiff in his criminal case and on appeal; the prosecutor; the clerks of the Alexander County Circuit Court and the Appellate Court, Fifth District; the Alexander County Sheriff; several psychologists who examined Plaintiff during his pretrial detention; the Menard Warden; and several other Menard prison officials.
Many of Plaintiff's allegations relate only to his pretrial detention in the Alexander County Jail while he was facing criminal charges (he was eventually convicted of home invasion, for which he is now serving a 29-year sentence) (Doc. 1, pp. 8-20). He claims that he was involuntarily given psychiatric medications which were ordered based on a false psychological report from Wisconsin. He was denied copies of his legal documents relating to his trial and his attempts to appeal his conviction, and was not allowed to appear in court on his case. He was sprayed with mace. None of these claims show that Plaintiff currently faces any imminent danger of serious physical injury.
In reference to his confinement at Menard, Plaintiff claims that he was made to submit to a DNA swab on November 14, 2014, in violation of applicable regulations (Doc. 1, p. 22). When he protested, he was written up for a disciplinary violation and placed in segregation for 60 days. His property was confiscated and six of his religious books came up missing. (Doc. 1, pp. 32-33). On April 17, 2015, Defendants Smith and Harris wrongly accused Plaintiff of flooding his cell. They took all his property, including his dentures, eyeglasses, prescription medications for glaucoma, mattress, and clothes, and turned off his water. He was without these items for five days, and as a result, he was unable to freely practice his Muslim religion according to the requirements for cleaning and covering himself before prayer (Doc. 1, pp. 38-41). He does not claim that these conditions continued beyond the five days.
Plaintiff claims that he is still being fed drugs in his food against his will, and that the medication causes "major headaches" (Doc. 1, p. 22). He has begun taking only one meal a day because he is scared to eat, and is losing weight (Doc. 1, p. 26). These are the only statements that remotely suggest that Plaintiff might currently be experiencing any physical distress - but they do not rise to the level of "imminent danger" of "serious physical injury" that is required to surmount the hurdle of § 1915(g). This Court has previously observed that a prisoner cannot "create the imminent danger' required by § 1915(g) by commencing a hunger strike." Taylor v. Walker, Case No. 07-cv-706-MJR, 2007 WL 4365718 (S.D. Ill.Dec. 11, 2007) (citing Ball v. Allen, Case No. 06-cv-0496, 2007 WL 484547 (S.D. Ala. Feb. 8, 2007); Muhammed v. McDonough, Case No. 06-cv-527, 2006 WL 1640128 (M.D. Fla. June 9, 2006); Wallace v. Cockrell, Case No. 03-mc-98, 2003 WL 22961212 (N.D. Tex. Oct. 27, 2003)). Plaintiff's choice to forego all but one meal a day is his own decision, and will not entitle him to proceed IFP under the exception contained in § 1915(g).
The Court concludes that Plaintiff has not shown that he is under imminent danger of serious physical injury so as to escape the "three-strikes" rule of § 1915(g), thus he cannot proceed IFP in this case. Therefore, it is hereby ORDERED that Plaintiff's motion for leave to proceed IFP in this action (Doc. 2) is DENIED.
It is FURTHER ORDERED that Plaintiff shall pay the full filing fee of $400.00 for this action within twenty-one (21) days of the date of entry of this Order (on or before August 13, 2015). If Plaintiff fails to comply with this Order to pay the fee in the time allotted by the Court, this case will be dismissed without prejudice. See FED. R. CIV. P. 41(b); Ladien v. Astrachan, ...