United States District Court, S.D. Illinois
DANNEL M. MITCHELL, #R07374, Plaintiff,
WARDEN DENNISON, T. PITTAYATHIKHAN, DR. DAVID, K. SMOOT, L. LECRANE, and WEXFORD HEALTH CARE, Defendants.
MEMORANDUM AND ORDER
MICHAEL J. REAGAN Chief Judge United States District Court
Dannel Mitchell filed this civil rights action pursuant to 42
U.S.C. § 1983 against officials at Shawnee Correctional
Center who allegedly failed to treat his severe back pain
after he transferred to the prison on March 24, 2017. (Doc.
2). Along with his Complaint, Plaintiff filed a Motion for
Leave to Proceed in forma pauperis (“IFP
Motion”) (Doc. 3). He sought leave to proceed without
prepayment of the $400.00 filing fee. Id. In his
Complaint and IFP Motion, Plaintiff failed to disclose the
fact that he “struck out” by filing three or more
prior suits that were dismissed at screening as frivolous,
malicious, or for failure to state a claim. See Mitchell
v. Baldwin, No. 16-cv-00278-NJR (S.D. Ill.) (dismissed
for failure to state a claim on Aug. 9, 2016); Mitchell
v. Dennison, No. 16-cv-01189-MJR (S.D. Ill.) (dismissed
as frivolous on Jan. 12, 2017); Mitchell v. Gateway
Foundation, No. 17-cv-02741 (N.D. Ill.) (dismissed for
failure to state a claim on April 27, 2017). See also
Mitchell v. Lupert, No. 16-cv-00486-SMY (S.D. Ill.)
(dismissed on June 14, 2016) (Doc. 8).
the circumstances, Plaintiff could not proceed IFP in this
action, unless his Complaint demonstrated that he suffered
from imminent danger of serious physical injury. See
28 U.S.C. § 1915(g). Had Plaintiff disclosed his three
strikes and also demonstrated that he faced imminent danger
of serious physical injury, he could have overcome the
three-strikes hurdle imposed by § 1915(g). Instead, he
misrepresented his litigation history to the Court by
disclosing none of his prior lawsuits. (Doc. 2, p. 3; Doc.
3). The Court found that the misrepresentation was knowing
and intentional. (Doc. 6). Further, Plaintiff's failure
to disclose his litigation history while seeking leave to
proceed IFP was grounds for immediate dismissal of the suit.
(Doc. 6, p. 4) (citing 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); Ammons v. Gerlinger, 547 F.3d
724, 725 (7th Cir. 2008) (termination of 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-strikes status
committed a fraud upon the court)). See also Postlewaite
v. Duncan, 668 F. App'x 162 (7th Cir. 2016)
(immediately terminating appeal filed by plaintiff who
falsely represented to district court and Court of Appeals
that he was eligible to proceed in forma pauperis);
Ramirez v. Barsanti, 654 F. App'x 822 (7th Cir.
Court ordered Plaintiff to show cause why the action should
not be dismissed with prejudice on or before May 24, 2017.
(Doc. 6). In a response Plaintiff filed on May 23, 2017, he
offered no reason why he failed to disclose his litigation
history. (Doc. 9). Instead, Plaintiff stated that he is
bedridden and in constant pain. (Doc. 9, pp. 1-4). He
complained that prison officials continue to ignore him.
response misses the mark entirely. He offered no reason for
failing to disclose his litigation history. Plaintiff did not
explain why he checked “no” when asked whether he
had filed any other lawsuits in state or federal court
relating to his imprisonment. He did not explain why he
omitted this information at the same time he was subject to
an order to show cause for the same misconduct in another
pending case. Mitchell v. AIDS Foundation of Chi.,
No. 15-cv-02907 (N.D. Ill.) (Doc. 24). The court will not
tolerate this pattern of misconduct and abuse of the IFP
process. Under the circumstances, the Court deems it
appropriate to sanction Plaintiff for fraudulent litigation
conduct by dismissing this action with prejudice
based on the omission of his entire litigation history from
the Complaint and IFP Motion when seeking leave to proceed
IFP and his failure to offer any reason for the misconduct.
(Doc. 6, p. 7) (citing Hoskins, 633 F.3d at 543).
HEREBY ORDERED that this action is DISMISSED with prejudice
as a sanction against Plaintiff for intentionally
misrepresenting that he is eligible to proceed in forma
pauperis in this case. The dismissal does not
count as one of Plaintiff's three allotted
“strikes” under 28 U.S.C. § 1915(g).
is WARNED that he may be subject to additional sanctions,
including monetary fines and/or a filing ban until all
outstanding fines and fees are paid in full, if he seeks IFP
status and fails to disclose his litigation history or the
fact that he has “struck out” under 28 U.S.C.
§ 1915(g) in any future action he files in this
ALSO ORDERED that Plaintiff's obligation to pay the
filing fee for this action was incurred at the time the
action was filed, regardless of subsequent developments in
the case. Accordingly, the filing fee of $400.00 remains due
and payable. See 28 U.S.C. § 1915(b)(1);
Lucien v. Jockisch, 133 F.3d 464, 467 (7th Cir.
1998). Accordingly, the agency having custody of 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, the agency shall begin forwarding monthly
payments of 20% of the preceding month's income credited
to Plaintiff's trust fund account (including all deposits
to the inmate account from any source) until the statutory
fee of $400.00 is paid in its entirety. The agency having
custody of Plaintiff shall forward payments from
Plaintiff's account to the Clerk of Court each time
Plaintiff's account exceeds $10.00 until the $400.00
filing 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 Shawnee Correctional Center
upon entry of this Order.
Plaintiff wishes to appeal this Order, he may file a notice
of appeal with this Court within thirty days of the entry of
judgment. Fed. R. App. 4(A)(4). 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. 3(e); 28 U.S.C. § 1915(e)(2);
Ammons, 547 F.3d at 725-26; Sloan, 181 F.3d
at 858-59; Lucien, 133 F.3d at 467. Moreover, if the
appeal is found to be nonmeritorious, Plaintiff may also
incur another “strike.” A proper and timely
motion filed pursuant to Federal Rule of Civil Procedure
59(e) may toll the 30-day appeal deadline. Fed. R. App. P.
4(a)(4). A Rule 59(e) motion must be filed no more than
twenty-eight (28) days after the entry of judgment, and this
28-day deadline cannot be extended.
Clerk's Office is DIRECTED to close this case and ...