United States District Court, S.D. Illinois
WILLIE J. BOOKER, Plaintiff,
BRYAN GLECKLER, et al., Defendants.
MEMORANDUM AND ORDER
M. YANDLE United States District Judge
matter comes before the Court on the Defendants Terri
Anderson, Kim Butler and Bryan Gleckler's Motion to
Revoke In Forma Pauperis Status (Doc. 70). Plaintiff is an
inmate with the Illinois Department of Corrections and is
incarcerated at Menard Correctional Center. Defendants are
employed by the Illinois Department of Corrections. On June
4, 2015, Plaintiff filed an action pursuant to 42 U.S.C.
§ 1983, alleging constitutional and statutory
violations, including a failure to protect claim that
included an allegation of imminent danger of serious physical
injury (Doc. 1). Plaintiff also moved for injunctive relief,
requesting a transfer to protective custody at Pontiac
Correctional Center (Doc. 2).
6, 2015, the Court found that Plaintiff had alleged imminent
danger sufficient for purposes of 28 U.S.C. § 1915(g)
and allowed Plaintiff to proceed in forma pauperis in spite
of the three strikes Plaintiff has accumulated for filing
frivolous or legally insufficient actions (Doc. 13). Both the
motion for injunctive relief and the imminent danger
allegation related to Plaintiff's claim under the Eighth
Amendment, alleging that Defendants failed to protect him
against the threat of harm posed by threats of murder from
gang members within the facility.
13, 2015, Magistrate Judge Philip M. Frazier held an
evidentiary hearing on Plaintiff's motion for injunctive
relief (Doc. 23). On July 16, 2015, Judge Frazier issued a
Report and Recommendation on the motion for injunctive
relief, finding that Plaintiff had failed to establish a
reasonable likelihood of success on the merits or irreparable
harm (Doc. 26). Plaintiff filed an amended the motion for
injunctive relief, which mooted the Report and
Recommendation, and later withdrew the amended motion (Doc.
51, 66, 69).
now move to revoke Plaintiff's in forma pauperis status
or, in the alternative, request that the Court set an
evidentiary hearing on Plaintiff's allegation of imminent
danger. Specifically, Defendants challenge the credibility of
Plaintiff's allegation of imminent danger, citing the
findings in Judge Frazier's report and recommendation.
Prisoner Litigation Reform Act gives authority to federal
courts to allow plaintiffs to initiate actions without the
prepayment of filing fees. 28 U.S.C. § 1915. That
authority is constrained by Section 1915(g), commonly
referred to as the “three strikes rule.” See
e.g., Coleman v. Tollefson, 135 S.Ct. 1759, 1761 (2015).
A dismissal on grounds that an action is frivolous,
malicious, or fails to state a claim is a strike for purposes
of § 1915(g). Id. A prisoner who has
accumulated three strikes cannot proceed without a full
prepayment of the filing fee unless he can establish that he
is in imminent danger of serious physical injury. 28 U.S.C.
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.
Seventh Circuit has addressed a defendant's ability to
challenge the allegation of imminent danger as follows:
[W]hen a defendant contests a plaintiff's claims of
imminent danger, a court must act to resolve the conflict. A
contrary conclusion would mean that a three-strikes plaintiff
could proceed IFP whenever his allegations of imminent danger
were facially plausible, even if the defendant had
incontrovertible proof that rebutted those allegations. Such
a rule would allow easy evasion of the three-strikes rule. We
also agree that a hearing is one proper way to resolve the
issue, though we caution courts to be conscious of such a
hearing's proper scope. As a general rule, we would
expect that an IFP determination should not evolve into a
full-scale merits review, though in many cases, including
this one, the allegations of imminent danger are linked to
the allegations underlying the suit.
Taylor v. Watkins, 623 F.3d 483, 485-86 (7th Cir.
2010). Relying on Taylor, several courts have found
a plaintiff's allegation of imminent harm to be not
credible following an evidentiary hearing and decision on a
motion for injunctive relief. See e.g., Duncan v.
Spiller, 2016 WL 66732 (S.D. Ill. 2016); Allen v.
Lang, 2014 WL 7452173 (S.D. Ill. 2014); Ammons v.
Hannula, 2009 WL 799670 (W.D. Wis. 2009).
juncture, this Court cannot make such a finding based on the
record. Judge Frazier issued the Report and Recommendation
within the context of a motion for injunctive relief and
focused on whether Plaintiff had demonstrated a reasonable
likelihood of success on the merits on his failure to protect
claim and irreparable harm (Doc. 26). Judge Frazier, who is
no longer with the Court, did not expressly determine whether
the allegation of imminent harm was credible.
such, Defendants' Motion to Revoke In Forma Pauperis
Status (Doc. 70) is taken UNDER ADVISEMENT. Defendants'
request for an evidentiary hearing on the credibility of
Plaintiff's § 1915(g) allegation of imminent danger
is granted. The hearing shall be scheduled and conducted by
Magistrate Judge Reona J. Daly.