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 CAUSE
Phil Gilbert United States District Judge.
matter is before the Court for case management. Plaintiff,
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. In the course of conducting its initial review of
Plaintiff's case, it came to the attention of the Court
that Plaintiff misrepresented his litigation history in his
Complaint, presumably in an attempt to deceive the Court as
to his eligibility to proceed in this action in forma
discovering this fact, the Court determined that Plaintiff
was likely not entitled to proceed IFP in this case. Further,
the Court ordered Plaintiff to show cause why this case
should not be dismissed as a sanction for his
misrepresentation of his prior litigation activity. (Doc. 5);
See also Fed R. Civ. P. 11; 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);
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
Response (Doc. 6) to the Show Cause Order (Doc. 5) has not
altered the Court's conclusion that dismissal is
warranted in this case for Plaintiff's failure to provide
full and accurate information on his previous cases and
strikes. Plaintiff first argues that his complaint in three
of the cases identified in this Court's Show Cause Order
(Doc. 5) do not have anything to do with Plaintiff's
incarceration or health. (Doc. 6, p. 1). Even if this were
true, which it is not, this Court identified in its Order two
other cases that Plaintiff failed to disclose in his
litigation history that he has not addressed. In Allen v.
State of Illinois, et al., Case No. 16-cv-1314, a case
recently resolved in this District, Plaintiff claimed he was
being illegally incarcerated. Id. at (Doc. 1).
Further, in Allen v. Bond County Jail, et al., Case
No. 17-cv-351, a case that is currently pending in this
District, Plaintiff makes claims regarding his conditions of
confinement in Bond County Jail. Id. at (Doc. 1).
Both of these cases, if no others, clearly relate to
Plaintiff's incarceration and merited disclosure in
Plaintiff's Complaint (Doc. 1).
also argues that three of the cases this Court cited to in
its Show Cause Order for previous strikes issued against him
are on appeal and should therefore not count as strikes
against him. (Doc. 6, p. 2). This statement is both factually
and legally inaccurate. Allen v. U.S. Marshals Serv. et
al., Case No. 15-cv-3545 was appealed by Plaintiff, but
the ruling of the Western District of Missouri in that case
was affirmed by the Eighth Circuit Court of Appeals on June
6, 2016, well before Plaintiff filed his case. Similarly, the
appeal of Allen v. United States, Case No.
15-cv-3524 has also been resolved, with the Eighth Circuit
Court of Appeals affirming the Western District of
Missouri's judgment on August 10, 2016, with the
exception that Plaintiff's request for release from
confinement and request for damages related to his conviction
and confinement were considered dismissed without prejudice.
Plaintiff did not appeal Allen v. Taney Cnty. Circuit
Court, Case No. 16-cv-3363, though he appears to claim
he did in his Response. (Doc. 6, p. 2). Further, if Plaintiff
was referring to Allen v. State of Illinois, et al.,
Case No. 16-cv-1314, in which he was issued another strike in
this District on March 20, 2017, Plaintiff has also not
appealed in that case. Finally, even if these cases were on
appeal, the strikes issued in them would stand unless and
until the relevant court of appeals reversed their issuance.
Coleman v. Tollefson, 135 S.Ct. 1759, 1765 (2015)
(holding “a prisoner who has accumulated three prior
qualifying dismissals under § 1915(g) may not file an
additional suit in forma pauperis while his appeal
of one such dismissal is pending.”).
stated above, Plaintiff's Response (Doc. 6) to the Show
Cause Order (Doc. 5) has not altered the Court's
conclusion that dismissal is warranted in this case for
Plaintiff's failure to provide full and accurate
information on his previous cases and strikes.
IS THEREFORE ORDERED that this action is
DISMISSED WITH PREJUDICE as a sanction for
Plaintiff's failure to disclose his litigation activity
and fraudulently marking “No” when asked whether
he had “begun any other lawsuits in state or federal
court relating to [his] imprisonment.” (Doc. 1, p. 3).
dismissal shall not count as another “strike”
under 28 U.S.C. § 1915(g).
IS FURTHER ORDERED that Plaintiff's Motion for
Leave to Proceed In Forma Pauperis (Doc. 2) is
DENIED. Accordingly, he must pay the full
$400.00 filing fee for this action. To that end, the agency
having custody of the Plaintiff is DIRECTED
to remit the $400.00 filing fee from his prison trust fund
account if such funds are available. If he does not have
$400.00 in his account, the agency must send an initial
payment of 20% of the current balance or the average balance
during the past six months, whichever amount is higher.
Thereafter, Plaintiff shall make monthly payments of 20% of
the preceding month's income credited to Plaintiff's
prison trust fund account until the $400.00 filing fee is
paid in full. The agency having custody of Plaintiff shall
forward these payments from Plaintiff's trust fund
account to the Clerk of this Court each time Plaintiff's
account exceeds $10.00, until the $400.00 fee is paid.
Payments shall be mailed to: Clerk of the Court, United
States District Court for the Southern District of Illinois,
P.O. Box 249, East St. Louis, Illinois 62202. The Clerk is
DIRECTED to mail a copy of this order to the
Trust Fund Officer at the St. Tammany Parish Jail upon entry
of this Order.
IS FURTHER ORDERED that Plaintiff's Motion for
Recruitment of Counsel (Doc. 3) is DENIED.
There is no constitutional or statutory right to appointment
of counsel in federal civil cases. Romanelli v.
Suliene, 615 F.3d 847, 851 (7th Cir. 2010). Federal
District Courts have discretion under 28 U.S.C. §
1915(e)(1) to request counsel to assist pro se litigants.
Id. When presented with a request to appoint
counsel, the Court must consider: “(1) has the indigent
plaintiff made a reasonable attempt to obtain counsel or been
effectively precluded from doing so; and if so, (2) given the
difficulty of the case, does the plaintiff appear competent
to litigate it himself [.]” Pruitt v. Mote,
503 F.3d 647, 654 (7th Cir. 2007).
regard to the first step of the inquiry, there is no
indication whether Plaintiff has attempted to obtain counsel
on his own, or has been effectively precluded from doing so.
Because Plaintiff has not made this showing, the Court finds
that Plaintiff has not made a reasonable attempt to find
counsel. Therefore, Plaintiff's motion for the
appointment of counsel will be DENIED.
Clerk is DIRECTED to close this case and
enter judgment accordingly.
Plaintiff wishes to appeal this dismissal, his notice of
appeal must be filed with this Court within thirty days of
the entry of judgment. Fed. R. App. P. 4(a)(1)(A). If
Plaintiff does choose to appeal, he will be liable for the
$505.00 appellate filing fee irrespective of the outcome of
the appeal. See Fed. R. App. P. 3(e); 28 U.S.C.
§ 1915(e)(2); Ammons v. Gerlinger, 547 F.3d
724, 725-26 (7th Cir. 2008); Sloan v. Lesza, 181
F.3d 857, 858-59 (7th Cir. 1999); Lucien v.
Jockisch, 133 F.3d 464, 467 (7th Cir. 1998). Moreover,
because Plaintiff has “struck out” and has not
shown that he is in imminent danger of serious physical
injury, this Court will not grant him permission to proceed
in forma pauperis on appeal. Finally, if the appeal is found
to be nonmeritorious, Plaintiff may also incur another
“strike.” A proper and timely motion filed
pursuant to Federal ...