United States District Court, N.D. Illinois, Eastern Division
JOHN V. NORRIS, Plaintiff,
CITY OF JOLIET, et al ., Defendants.
MEMORANDUM OPINION AND ORDER
B. Kim United States Magistrate Judge.
the court is Plaintiff John Norris's November 14, 2016
application for leave to proceed on appeal in forma
pauperis (“IFP”). (R. 161.) His application
is denied for the following reasons:
September 7, 2016, Norris appealed this court's August
15, 2016 entry of judgment against him, (R. 131), as well as
this court's denial of his first motion to reconsider the
entry of judgment on August 23, 2016, (R. 134; R. 138). On
October 17, 2016, Norris filed a motion for leave to appeal
IFP with the Seventh Circuit, and the Seventh Circuit
transferred Norris's motion to this court. (R. 153; see
also R. 155; R. 156; R. 158.) This court initially denied
Norris's IFP motion without prejudice on October 24,
2016, instructing him to submit a properly completed and
certified application. (R. 155.) Then on October 31, 2016,
the court received notice that Norris was no longer in
custody at Will County Adult Detention Facility
(“WCADF”) and informed him that to proceed IFP on
appeal, he should complete and submit an IFP form with
information about his current financial and employment
situation. (R. 160.)
submitted his IFP form on November 14, 2016, and upon review,
the court noted that Norris reported under penalty of perjury
that he received no income from any source whatsoever in the
past 12 months. (See R. 161; R. 165.) However, the court
observed that in previous submissions to the court, Norris
indicated that he had in fact received funds within the past
year through the WCADF Trust Fund Department, rendering the
declaration in his application inaccurate. (R. 165.) The
court gave Norris an opportunity to explain the discrepancy,
and he filed a response on December 5, 2016. (R. 166.) In his
response, Norris states that his mistake was inadvertent
because he “did not think that his old inmate trust
fund account activity had any materiality after he had been
released” because “his financial situation
changed.” (Id. ¶ 3.) He also explained
that he received about $50 per month from his family while in
custody, and since being released, has been living with and
caring for his elderly mother. (Id. ¶ 7.) He
asserts that he did not intend to deceive the court. (See
Id. ¶¶ 8-11.)
a federal litigant who cannot afford to pay court fees may
proceed IFP, which means that he may commence a civil action
or appeal a civil judgment without prepaying fees or paying
certain expenses. Coleman v. Tollefson, 135 S.Ct.
1759, 1761 (2015) (citing 28 U.S.C. § 1915). However, an
inmate or detainee is precluded from bringing a civil action
or appealing a judgment in a civil action IFP if at least
three of the inmate's or detainee's prior lawsuits
have been dismissed as frivolous or malicious, or for failing
to state a claim on which relief may be granted. 28 U.S.C.
§ 1915(g). The prisoner's entire action or appeal
must be dismissed on an enumerated ground in order for the
dismissal to count as one of the three “strikes.”
Turley v. Gaetz, 625 F.3d 1005, 1008-09 (7th Cir.
has previously filed a number of lawsuits in this district,
at least three of which were dismissed on one of the grounds
enumerated in Section 1915(g). In 2008, he filed a civil
rights suit against a former Will County public defender.
Norris v. Jones, No. 08 CV 847 (N.D. Ill. Feb. 8,
2008) (“Jones Action”). The court dismissed the
Jones Action for failure to state a claim and for lack of
federal subject matter jurisdiction, explicitly noting in its
order that the dismissal would count as one of Norris's
“three allotted dismissals under 28 U.S.C. §
1915(g).” Id., Dkt. No. 15 (June 19, 2008)
(Guzman, J.). Norris did not appeal the dismissal.
2011, Norris brought a civil rights suit against WCADF and
several other defendants. Norris v. Will Cty. Adult Det.
Facility, et al., No. 11 CV 1291 (N.D. Ill. Feb. 23,
2011). The court in that case also dismissed Norris's
complaint for failure to state a claim, and again expressly
informed Norris that the dismissal would count as another
strike under Section 1915(g). Id., Dkt. No. 5 (Feb.
28, 2011) (Kendall, J.). Norris appealed the dismissal, but
his appeal was dismissed for failure to pay the required
docketing fees. Id., Dkt. No. 19 (July 21, 2011).
Norris sued Walgreens and others for alleged civil rights
violations. Norris v. Walgreens, et al., No. 14 CV
3207 (N.D. Ill. April 30, 2014) (“Walgreens
Action”). After Norris failed to appear at a status
hearing in June 2015, the court dismissed the Walgreens
Action for want of prosecution and, in the alternative,
granted the defendants' pending motions to dismiss.
Id., Dkt. Nos. 42 & 43 (June 17, 2015)
(Feinerman, J.). While the court there did not explicitly
state that the dismissal counted as a strike under Section
1915(g), it entered judgment on the basis of defendants'
motions to dismiss for failure to state a claim.
Id., Dkt. No. 43 (June 17, 2015); see Boles v.
Matthews, No. 97-5874, 1999 WL 183472, at *2 (6th Cir.
March 15, 1999) (finding that while dismissal for want of
prosecution is not a strike, the district court's
alternative finding that the complaint failed to state a
claim was correct, constituting a strike). Norris did not
appeal the judgment.
2015, Norris sued WCADF again along with Will County and
other defendants, again alleging civil rights violations.
Norris v. Will Cty., et al., No. 15 CV 8973 (N.D.
Ill. Oct. 8, 2015). After the case was initially dismissed
for failure to comply with court orders, Norris moved to
reinstate the case. Id., Dkt. Nos. 7 (Dec. 9, 2015)
& 14 (March 24, 2016). The court denied his request, but
gave Norris an opportunity to “submit an amended
complaint that states a valid claim, ” provide the
court with an updated IFP application, and make an initial
partial payment of the filing fee for that case.
Id., Dkt. No. 14 (March 24, 2016) (Kendall, J.).
Norris failed to do so by the court's appointed deadline,
and brought no appeal of the dismissal. As was the case with
the Walgreens Action, the court did not expressly state that
the dismissal counted as a strike. But according to the
Seventh Circuit, when a plaintiff “is told to amend his
. . . complaint and fails to do so, the proper ground of
dismissal is not want of prosecution but failure to state a
claim, one of the grounds in section 1915(g) for calling a
strike against a prisoner plaintiff.” Paul v.
Marberry, 658 F.3d 702, 705 (7th Cir. 2011). Therefore,
this dismissal was also a strike under Section 1915(g).
rate, Norris recently accumulated another strike that was
explicitly labeled as such. In Norris v. Jewel-Osco, et
al., No. 16 CV 8819 (N.D. Ill. Sept. 9, 2016)
(“Jewel Action”), Norris's civil rights suit
was dismissed with prejudice on November 8, 2016, for failure
to state a claim. Id., Dkt. No. 18 (Nov. 8, 2016)
(Durkin, J.). The court in the Jewel Action stated in its
order that the dismissal counted as a strike under Section
1915(g) and admonished Norris that he must “alert a
federal court that he has been assessed three
‘strikes' under [Section] 1915(g) when filing a new
week after Norris accrued his third explicit strike,
notwithstanding the two additional dismissals (that this
court is aware of), which likely bring his total strike-count
to five, Norris filed the current IFP application without
alerting this court to his status as a Section 1915(g)
litigant. (R. 161.) The Seventh Circuit has warned in no
uncertain terms that if litigants with at least three strikes
seek permission to proceed IFP, doing so will lead to
immediate termination of their suit with the filing fee
remaining due. See Sloan v. Lesza, 181 F.3d 857, 859
(7th Cir. 1999). Granted, Norris filed his appeal in this
case on September 7, 2016, before he was formally notified of
his three-strike status. (R. 138.) Furthermore, Norris was
warned by the court in the Jewel Action to alert the court
when filing a new suit, not when filing an appeal. However,
having now accumulated at least three strikes before
his current application to proceed IFP on appeal, the court
must deny his application.
worth noting that even looking beyond the requirements of
Section 1915(g), the inaccuracies in Norris's IFP
application-inadvertent or otherwise- indicate a disregard
for the penalty of perjury and a certain nonchalance towards
the privilege of proceeding IFP. See Lofton v. SP Plus
Corp., 578 Fed.Appx. 603, 604 (7th Cir. 2014)
(“Proceeding in forma pauperis is a privilege, and
courts depend on the plaintiff's honesty in assessing
[his] ability to pay.”). While the court acknowledges
that Norris is a lay person who has brought this suit pro
se, his extensive litigation history shows that Norris
is an experienced litigant who has been admonished on
numerous occasions to heed courts' orders, often to no
avail. See, e.g., Norris v. Jewel-Osco, No. 16 CV
8819 (N.D. Ill. Sept. 9, 2016) (Durkin, J.); Norris v.
Wal-Mart, No. 15 CV 8971 (N.D. Ill. Oct. 8, 2015)
(Alonso, J.); Norris v. Will Cty. Police Officer
Bartunek, No. 15 CV 7306 (N.D. Ill. Aug. 19, 2015)
(Gilbert, J.); Norris v. Walgreens, No. 14 CV 3207
(N.D. Ill. June 17, 2015) (Feinerman, J.); Norris v.
Baikie, No. 14 CV 1652 (N.D. Ill. March 7, 2014) (Dow,
J.). In fact, on at least one prior occasion he made errors
in his IFP application similar to those he made here.
See, e.g., Norris v. Will County, et al., No. 15 CV
8973, Dkt. Nos. 6 (N.D. Ill. Nov. 2, 2015) & 14 (March
24, 2016) (Kendall, J.) (dismissing case after Norris failed
to submit a complete and updated IFP application accurately
reflecting his financial and employment status); Norris
v. Jones, No. 08 CV 847, Dkt. No. 12 (N.D. Ill. May 5,
2008) (Guzman, J.) (denying IFP application because Norris
indicated he received no income from any source in the last
12 months, but court noted a financial ledger showing
“two debits in March alone”). Furthermore, even
after this court gave Norris an opportunity to explain the
inconsistencies in his November 14, 2016 application, he made
no mention in his response of the $1, 758 in wages from
employment in March and April 2016 which he listed in his
October 17, 2016 IFP application, but omitted from his most
recent application. (See R. 154 at 2; R. 161 at 1-2; R. 166.)
He also declared in his application that neither he nor
“anyone else living at the same residence” owned
any real estate, but then wrote in the margin that he lives
with his mother, who “does own her home and other
Rental Property.” (R. 161 at 3.) Such inconsistencies
could be sufficient grounds in themselves for denying his IFP
application. Cf. Kennedy v. Huibregtse, 831 F.3d
441, 443-44 (7th Cir. 2016) (affirming ...