United States District Court, S.D. Illinois
JAMES D. LEWIS, # B-52327, et al.,  Plaintiffs,
SECRET SERVICE, U.S. HOMELAND SECURITY, BRUCE RAUNER, EDWARD SNOWDEN, and UNKNOWN PARTIES, Defendants.
MEMORANDUM AND ORDER
M. YANDLE United States District Judge.
August 29, 2016, Plaintiff James Lewis filed this action
pursuant to the Federal Tort Claims Act (“FTCA”),
28 U.S.C. §§ 1346, 2671-2680, against several
federal agencies, state officials and other individuals who
allegedly ignored his warnings about a perceived threat to
national security (Doc. 1, pp. 1-4). In connection with this
claim, Plaintiff seeks declaratory judgment and injunctive
relief (id. at 5).
with the Complaint, Plaintiff filed a Motion for Leave to
Proceed In Forma Pauperis (“IFP Motion”)
(Doc. 2) that is now before the Court for consideration. He
seeks leave to proceed in this matter without prepayment of
the Court's usual $350.00 filing fee in a civil case.
See 28 U.S.C. § 1914(a). For the reasons that
follow, Plaintiff's IFP Motion shall be
DENIED and this action DISMISSED
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 has tendered an affidavit of
indigence that is sufficient as to form, although the Court
is still awaiting receipt of a certified trust fund account
statement that shows the balance of Plaintiff's trust
fund account for the 6-month period immediately preceding the
filing of this action.
Plaintiff is barred from proceeding IFP by § 1915(g).
Under this statute, 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).
has accumulated more than three “strikes” under
§ 1915(g). Review of documents filed on the Public
Access to Court Electronic Records
(“PACER”) website (www.pacer.gov) reveals
that Plaintiff “struck out” years ago by filing
more than three cases that were dismissed as frivolous,
malicious or for failure to state a claim. See Lewis v.
Dart, No. 10-cv-4247 (N.D. Ill. July 22, 2010);
Lewis v. Alvarez, No. 10-cv-4540 (N.D. Ill. July 29,
2010); Lewis v. State of Illinois, No. 12-cv-1023
(N.D. Ill. June 27, 2012); Lewis v. Unknown Party, No.
13-cv-1339 (S.D. Ill. Jan. 22, 2014). In his IFP Motion and
Complaint, Plaintiff failed to disclose his litigation
history including the assessment of any “strikes”
under § 1915(g). Even if he had done so, Plaintiff's
IFP Motion would be subject to denial.
has not demonstrated that he faces imminent danger of serious
physical injury and is therefore unable to clear the
3-strikes hurdle to litigation. See 28 U.S.C. §
1915(g). 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)). “[T]he harm must be imminent or
occurring at the time the complaint is filed.”
Id. at 330 (citing Abdul-Wadood v. Nathan,
91 F.3d 1023 (7th Cir. 1996)).
does not describe actual or imminent harm (see Doc.
1). The Complaint instead addresses Plaintiff's perceived
threat to national security posed by semi-tractor trailers
and gas stations (Doc. 1, p. 4). Plaintiff alleges that
semi-tractor trailers could be hijacked and used as
“weapons of mass destruction” (id.). He
does not explain how, but indicates that the only way to
address this threat is to place security guards at every gas
station in the United States (id.). Plaintiff's
fear of harm is speculative at best. It is also unrelated to
his immediate physical safety. The allegations support no
finding of imminent danger under § 1915(g), let alone an
FTCA claim against the defendants. Plaintiff's IFP Motion
is therefore DENIED.
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 of $400.00
for the action 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 and sanctions are warranted.
failure to disclose his litigation history when requesting
pauper status is grounds for immediate dismissal of the suit
with prejudice. See 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 3-strike status committed
a fraud upon the court); 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 dismissal). This sanction should come as no
surprise to Plaintiff.
to filing this action, Plaintiff was repeatedly warned that
failure to disclose his litigation history, including
strikes, would result in the imposition of sanctions that
include dismissal with prejudice. See, e.g. Lewis v.
Godinez, 13-cv-1439 (C.D. Ill. Oct. 21, 2013) (plaintiff
was admonished that he must inform courts that he has
accumulated at least three § 1915(g) dismissals when
seeking to proceed IFP in an action brought in federal
court); Lewis v. Unknown Parties, No. 13-cv-1339-MJR
(S.D. Ill. January 22, 2014) (plaintiff warned that failure
to disclose litigation history is grounds for dismissal of
action). Plaintiff flagrantly disregarded these warnings.
year, alone, Plaintiff filed at least nine other actions in
the Northern District of Illinois that were dismissed with
prejudice as a sanction for failing to disclose his
litigation history. See Lewis v. United States, No.
16-cv-50085 (N.D. Ill. April 29, 2016) (Doc. 3); Lewis v.
State of Illinois, No. 16-cv-50090 (N.D. Ill. April 29,
2016) (Doc. 4); Lewis v. Baldwin, No. 16-cv-50108
(N.D. Ill. April 29, 2016) (Doc. 3); Lewis v.
Rauner, No. 16-cv-50109 (N.D. Ill. May 9, 2016) (Doc.
4); Lewis v. John and Jane Doe's, No.
16-cv-50125 (N.D. Ill. May 19, 2016) (Doc. 4); Lewis v.
State of Illinois, No. 16-cv-50126 (N.D. Ill. May 10,
2016) (Doc. 4); Lewis v. John and Jane Doe's,
No. 16-cv-50127 (N.D. Ill. June 2, 2016) (Doc. 4); Lewis