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Lewis v. Secret Service

United States District Court, S.D. Illinois

October 11, 2016

JAMES D. LEWIS, # B-52327, et al., [1] Plaintiffs,


          STACI M. YANDLE United States District Judge.

         On 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).

         Along 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[2] 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 with prejudice.

         IFP Motion

         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 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.

         Regardless, 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).

         Plaintiff has accumulated more than three “strikes” under § 1915(g). Review of documents filed on the Public Access to Court Electronic Records (“PACER”)[3] website ( 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);[4] 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.

         Plaintiff 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)).

         Plaintiff 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.


         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 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.

         Plaintiff's 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.

         Prior 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.

         This 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 v. ...

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