United States District Court, S.D. Illinois
MEMORANDUM AND ORDER
Phil Gilbert United States District Judge.
Robert Allen, an inmate who is currently detained at St.
Tammany Parish Jail in Covington, Louisiana, filed this civil
rights action pursuant to 42 U.S.C. § 1983 to complain
about the conditions of his confinement at Bond County Jail
in Greenville, Illinois. (Doc. 1). Plaintiff claims that he
was subjected to unconstitutional conditions of confinement
at the Jail between November 5, 2016 and January 29, 2017.
(Doc. 1, p. 2). As a result of his exposure to black mold, he
now experiences back pain, nausea, diarrhea, headaches, and
blood in his urine. (Doc. 1, pp. 2-3). In connection with his
claim for unconstitutional conditions of confinement,
Plaintiff seeks monetary relief, lifetime medical treatment,
and a full investigation of the Jail by the Environmental
Protection Agency. (Doc. 1, p. 4).
8, 2017, Plaintiff filed a Motion for Leave to Proceed in
forma pauperis (“IFP Motion”), in which he
seeks leave to proceed in this matter as a poor person. (Doc.
5). Before screening his Complaint under 28 U.S.C. §
1915A, the Court will consider Plaintiff's eligibility to
proceed without prepayment of the Court's usual
$350.00 filing fee in a civil case. See
28 U.S.C. § 1914(a). For the reasons set forth herein,
Plaintiff's IFP Motion shall be DENIED.
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). In this case, Plaintiff has tendered an
affidavit of indigence that is sufficient as to form. (Doc.
is nonetheless barred from proceeding IFP. See 28
U.S.C. § 1915(g). According to 28 U.S.C. § 1915, 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's motion must be denied
on this basis.
documents are public records, and the Court can take judicial
notice of them. See Henson v. CSC Credit Servs., 29
F.3d 280, 284 (7th Cir. 1994). Review of documents filed on
the Public Access to Court Electronic Records
(“PACER”) website (www.pacer.gov)
discloses that Robert Allen commenced at least three prior
actions that were dismissed for failure to state a claim upon
which relief may be granted. See Allen v. U.S. Marshals
Serv., No. 15-cv-3545 (W.D. Mo., dismissed Feb. 2,
2016); Allen v. Taney Cnty. Circuit Court, No.
16-cv-3363 (W.D. Mo., dismissed Oct. 20, 2016); Allen v.
United States, No. 15-cv-3524 (W.D. Mo., dismissed Feb.
5, 2016). He received a “strike” in each of these
cases and was then denied IFP by the Western District of
Missouri in at least one other case. See Allen v.
Williams, No. 16-cv-3468 (W.D. Mo., dismissed Nov. 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”). Allen
then filed two new cases in this District. See Allen v.
State of Ill., No. 16-cv-01314 (S.D. Ill., dismissed
March 20, 2017 for failure to state a claim); Allen v.
Bond County Jail, No. 17-00367-JPG (S.D. Ill., ordered
to show cause why case should not be dismissed as sanction
for failure to disclose litigation history).
is, by all indications, the same Robert Allen who incurred
the above-referenced “strikes” prior to filing
the instant action. Plaintiff's handwriting in the
Complaint (Doc. 1) is distinctive and appears to be identical
to the handwriting in the pleadings filed in the Western
District of Missouri and this District. Based on a review of
these records, the Court is satisfied that Plaintiff
“struck out” by accumulating at least four
“strikes” for purposes of § 1915(g) before
filing the instant case.
he has accumulated at least three “strikes” for
purposes of §1915(g), Plaintiff may not proceed IFP in
this case unless he is under imminent danger of serious
physical injury. Plaintiff has not satisfied this
requirement. 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)). 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. 1996)).
does not claim to be in imminent danger in his Complaint
(Doc. 1) or his IFP Motion (Doc. 5). He complains of
conditions he encountered at a Jail where he is no longer
incarcerated. He is no longer exposed to the conditions.
Although he complains of lingering side effects of this
exposure, the symptoms he describes, including back pain,
nausea, “minimal” diarrhea, headaches, and
“occasional” blood in his urine, do not appear to
present an imminent danger of serious physical injury. (Doc.
1, pp. 2-3). The fact that someone advised him of a
connection between kidney cancer and exposure to black mold
does not mean that he now has cancer or will ever develop it.
Id. Although the medical issues he describes are
potentially serious, the allegations do not suggest that the
danger is “imminent” within the meaning of §
1915(g). Further, any claim arising from the present denial
of medical care for these symptoms should be brought against
officials at St. Tammany Parish Jail who are denying
Plaintiff medical treatment, not against officials at Bond
County Jail. Because Plaintiff has not shown that he is under
imminent danger of serious physical injury so as to escape
the “three-strikes” rule of § 1915(g), he
cannot proceed IFP in this case.
plaintiff who is denied IFP will normally be allowed to
proceed with his lawsuit, if he prepays the full filing fee
of $400.00 for the action. This is not the typical case.
Plaintiff failed to disclose his litigation history in his
Complaint and at the time he requested permission to proceed
as a poor person. (Doc. 1, 5). Therefore, the Court must also
consider whether it is appropriate to dismiss this action as
Court-issued complaint form requires plaintiffs to disclose
any lawsuits in state or federal court relating to their
imprisonment. It requires disclosure of all lawsuits of this
nature by directing plaintiffs to “describe the
additional lawsuits on another sheet of paper.” The
form quite clearly warns plaintiffs that “[f]ailure
to comply with this provision may result in summary denial of
your complaint.” Although Plaintiff did not use
this form to prepare the instant Complaint, he recently used
it to prepare two other lawsuits for filing in this District
and answered this question in the negative both times.
See Allen v. Bond County Jail, No. 17-cv-00367-JPG
(S.D. Ill. 2017) (Doc. 1, p. 3); Allen v. State of
Ill., No. 16-cv-01314-NJR (S.D. Ill. 2016) (Doc. 1, pp.
3-4). In the instant Complaint, Plaintiff simply omitted all
reference to his prior suits, including his
“strikes.” (Doc. 1). In his IFP Motion, Plaintiff
failed to mention that he is ineligible to proceed IFP. (Doc.
plaintiff's failure to disclose his litigation history,
particularly when he seeks to proceed IFP, may be grounds for
immediate dismissal of the suit. Isby v. Brown, --
F.3d --, App. No. 15-3334, 2017 WL 1905966 (7th Cir. 2017)
(citing 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)).
See also 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); see also 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). In light of controlling authority, this
action is subject to dismissal as a sanction for
Plaintiff's omission of this critical information from
his Complaint and IFP Motion. Accordingly, Plaintiff will be
ordered to show cause why this action should not be dismissed
as a sanction for his misconduct. Failure to do so by the
deadline will result in dismissal of this action with