United States District Court, S.D. Illinois
ROBERT E. ALLEN, #1553, Plaintiff,
BOND COUNTY JAIL, JEFF BROWN, and BOND COUNTY BOARD OF SUPERVISORS, Defendants.
MEMORANDUM AND ORDER TO SHOW CASE
GILBERT, District Judge:
currently incarcerated at St. Tammany Parish Jail, has
brought this pro se civil rights action pursuant to
the Federal Tort Claims Act, 28 U.S.C. §§ 1346,
2671-2680. He raises several complaints relating to the
conditions of his confinement at Bond County Jail in
Greenville, Illinois and alleged medical issues that arose
case is now before the Court for a preliminary review of the
Complaint pursuant to 28 U.S.C. § 1915A, which requires
the Court to dismiss any claims that are frivolous,
malicious, fail to state a claim on which relief may be
granted, or seek monetary relief from an immune defendant.
However, in the course of conducting this review, it has come
to the attention of the Court that Plaintiff appears to have
attempted to deceive the Court as to his eligibility to
proceed in this action in forma pauperis
(“IFP”). Under 28 U.S.C. § 1915,
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.
28 U.S.C. § 1915(g).
filed a Motion for Leave to Proceed IFP (Doc. 2) along with
his Complaint (Doc. 1) on April 10, 2017. Upon review, it is
apparent that the information Plaintiff provided regarding
his prior litigation activity was entirely false. In the
section of the complaint form where he was instructed to list
all of his previous lawsuits, he marked “No” when
asked if he had begun any other lawsuits in state or federal
court relating to his imprisonment. (Doc. 1, p. 3).
fact, Plaintiff's litigation activity appears to include
at least two cases he has filed in this District alone
pertaining to his incarceration, but failed to
disclose: Allen v. State of Illinois,
et al., Case No. 16-cv-1314 (S.D. Ill., dismissed
March 20, 2017, for failure to state a claim upon which
relief may be granted and with a strike pursuant to 28 U.S.C.
§ 1915(g)), and Allen v. Bond County Jail, et
al., Case No. 17-cv-351 (S.D. Ill., filed April 6,
2017). Furthermore, it appears that Plaintiff has filed at
least four lawsuits pertaining to his incarceration in the
United States District Court for the Western District of
Missouri, at least three of which were dismissed for failure
to state a claim upon which relief may be granted: Allen
v. U.S. Marshals Serv. et al., Case No. 15-cv-3545 (Doc.
6) (finding that plaintiff failed to state a claim upon which
relief may be granted); Allen v. Taney Cnty. Circuit
Court, Case No. 16-cv-3363 (Doc. 4) (same); Allen v.
USA, Case No. 15-cv-3524 (Doc. 6) (same). After
incurring these strikes, the Western District of Missouri
denied Plaintiff's application to proceed IFP in at least
one later-filed case, pursuant to 42 U.S.C. 1915(g).
Allen v. Williams, et al., Case No. 16-cv-3468
(W.D.Mo., dismissed November 30, 2016) (Doc. 4, pp. 1-2)
(noting “Plaintiff has had three or more prior prisoner
actions or appeals dismissed on the grounds that they were
frivolous, malicious, or failed to state a claim upon which
relief may be granted.”).
Court has concluded that Plaintiff is the inmate who incurred
these three strikes in the Western District of Missouri, and
at least one additional strike in this District, based on an
examination of the pleadings filed in those cases. Each of
the Missouri cases includes the inmate number, from FCI
Greenville, of 03738-043. These documents include
Plaintiff's full name Robert Eugene Allen, or his first
and last name with his middle initial, “Robert E.
Allen, ” as in the instant case. (Doc. 1, pp. 1, 6). He
signs his name as “Robert E. Allen” on his
pleadings in the Western District of Missouri cases, in Case
No. 16-cv-1314 (Doc. 1, p. 8) in this District, and in the
instant case. (Doc. 1, p. 6). His handwriting is distinctive,
and appears to be identical in both the Missouri pleadings
and those filed in this Court in Case No. 16-cv-1314 and this
case. Based on a review of these records, the Court is
satisfied that Plaintiff has accumulated at least four
“strikes” for purposes of § 1915(g) prior to
the time he filed the instant case. As a result, he may not
proceed IFP in this case unless he is under imminent danger
of serious physical injury.
pleadings in the instant case do not suggest that Plaintiff
faces such imminent danger. Plaintiff indicates in his
Complaint that he suffers from abdominal pains, kidney
infection, and minimal diarrhea, and suggests in his request
for relief that he will eventually require surgery to remove
his kidney. (Doc. 1, pp. 5-6). While these are potentially
serious medical issues, Plaintiff's allegations do not
suggest that the danger is “imminent” within the
meaning of § 1915(g). This Court may therefore deny
Plaintiff IFP status.
Court relies on a party's litigation history listed in
his or her complaint to adhere to the three-strike
requirement of 28 U.S.C. § 1915(g), thus, there is a
need for correct and complete information about prior
litigation. Where a party fails to provide accurate
litigation history, the Court may appropriately dismiss the
action for providing fraudulent information to the tribunal.
Hoskins v. Dart, 633 F.3d 541, 543 (7th Cir. 2011)
(dismissal as sanction appropriate where plaintiff failed to
provide litigation history and certified the truth of the
complaint). See also 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 three-strike status
committed a fraud upon the court).
here requested to proceed IFP. He failed to disclose the
entirety of his prior litigation activity, and gave no
information on any of the strikes he incurred in Missouri or
this District. Based on the authority summarized above, this
action is subject to dismissal as a sanction for
Plaintiff's omission of this critical information from
his pleading. Out of an abundance of caution, Plaintiff shall
be allowed an opportunity to show cause why this action
should not be dismissed, before the Court imposes this
to Show Case
THEREFORE ORDERED that Plaintiff shall submit a written
statement to the Court to: (1) explain why he failed to list
his litigation history in his Complaint; (2) to show cause
why this Court should not dismiss this case as a sanction for
his failure to provide full and accurate information on his
previous cases and “strikes.” Plaintiff SHALL
SUBMIT his response within 14 days of the date of this order
(on or before May 3, 2017). Failure to file a response shall
result in the dismissal of this action with prejudice.
See Fed. R. Civ. P. 41(b). An unsatisfactory
response shall also result in the dismissal of this case.
Plaintiff is ADVISED that he is under a continuing obligation
to keep the Clerk of Court and each opposing party informed
of any change in his address; the Court will not
independently investigate his whereabouts. This shall be done
in writing and not later than 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 ...