United States District Court, S.D. Illinois
MEMORANDUM AND ORDER
M. YANDLE, United States District Judge.
currently incarcerated at Menard Correctional Center
("Menard"), brings this pro se civil
rights action pursuant to 42 U.S.C. § 1983.
matter is before the Court on Plaintiffs Motion for Leave to
Proceed in forma pauperis ("IFP") (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). Upon tender of a proper affidavit and certified
copy of a trust fund account statement, a prisoner then is
assessed an initial partial filing fee of twenty percent of
the greater of: (1) the average monthly deposits to the
prisoner's trust fund account; or (2) the average monthly
balance in the prisoner's trust fund account for the
six-month period immediately preceding the filing of the
prisoner's suit. See 28 U.S.C. §
1915(b)(1)(A)-(B). After payment of an initial partial filing
fee, 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). The agency having custody of a
prisoner must forward payments from the prisoner's trust
fund account to the clerk of the district court where the
prisoner's case is pending 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).
case, Plaintiff has tendered an affidavit of indigence that
is sufficient as to form. However, 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(g),
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.
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 and
the Public Access to Court Electronic Records
("PACER") website (www.pacer.gov)
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 as being frivolous or for failure to
state a claim upon which relief may be granted: Spivey v.
Elk, Case No. 91-cv-8201 (N.D. 111., dismissed Dec.31,
1991, Dkt. 5); Spivey v. Kirkles, et. al, Case No.
91-cv-8203 (N.D. 111., dismissed Jan. 10, 1992); and,
Spivey v. Walker, et. al, Case No. 05-cv-00163 (S.D.
111., dismissed Jan. 1, 2007, Doc. 15). Because Plaintiff has
three or more "strikes" for purposes of §
1915(g), he may not proceed IFP in this case unless he is
under imminent danger of serious physical injury.
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, "[allegations 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
case, Plaintiffs complaint, as well as Plaintiffs 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. Plaintiffs complaint
contains numerous allegations of injuries and potential harm,
but all of his allegations relate to scenarios that occurred
in the past. One of the notable issues Plaintiff identified
was difficulty securing medical care for an injury he
sustained to his eye during a fight. However, in one part of
his Complaint he says he did receive care for his eye in July
2014 (Doc. 1-1 at 8). In another portion of his complaint, he
alleged that he was only denied medical care from 2011 to
February 2016 (Id. at 12).
also chronicled a number of complaints about previous cell
mates posing a threat due to gang allegiances, age, or the
possibility that the cell mates bore diseases such as
tuberculosis (See e.g. Id. at 4, 7). Additionally,
Plaintiff expresses general displeasure with the grievance
procedure because he feels it has taken too long and his
grievances are still pending. These claims fail because they
do not present a risk of imminent danger and a Plaintiff does
not have a constitutionally protected interest in a prison
grievance procedure. See id; Grieverson v. Anderson,
538 F.3d 763, 772 (7th Cir. 2008) (noting that any right to a
grievance procedure is a procedural right and thus is not the
proper fruit of a substantive due process claim).
also makes reference to previous lawsuits that were dismissed
for various reasons, requesting to reinstate those suits,
despite no new information about their merits (Id.
at 6). Finally, Plaintiff makes sweeping allegations about
racial tensions and First Amendment violations endured based
upon his racial identity. However, he does not identify
specific ways in which these tensions present ongoing and
imminent threats of physical injury or harm. Allegations of
past harm are not sufficient to overcome the imminent danger
threshold. See Ciarpaglini, 352F.3dat330.
has not shown that he is under imminent danger of serious
physical injury so as to escape the "three-strikes"
rule of Section 1915(g). Thus, he cannot proceed IFP in this
case. Therefore, it is hereby ORDERED that
Plaintiffs motion for leave to proceed IFP in this case (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. If Plaintiff fails to comply
with this Order in the time allotted by the Court, this case
will be dismissed. See Fed. R. Civ. P. 41(b);
Laden v. Astrachan, 128 F.3d 1051, 1056-57 (7th Cir.
1997); Johnson v. Kamminga, 34 F.3d 466, 468 (7th
Plaintiff is ADVISED that he is under a continuing obligation
to keep the Clerk and each opposing party informed of any
change in his address, and that the Court will not
independently investigate his whereabouts. This shall be done
in writing and not later than seven (7) days after a transfer
or other change in address occurs. Failure to comply with
this order will cause a delay in the transmission of court
documents, and may result in a dismissal of this action for
want of prosecution.