United States District Court, S.D. Illinois
MEMORANDUM AND ORDER
Gilbert District Judge United States District Court.
matter is now before the Court for a decision regarding the
imposition of sanctions. Plaintiff Robert Allen filed this
civil rights action pursuant to 42 U.S.C. § 1983 to
challenge the conditions of his confinement at Bond County
Jail in Greenville, Illinois. (Doc. 1). Plaintiff also filed
a Motion for Leave to Proceed in forma pauperis
(“IFP Motion”), in which he seeks leave to
proceed without prepayment of the $400.00 filing fee. (Doc.
5). However, he failed to disclose his litigation history in
the Complaint and IFP Motion. (Docs. 1 5).
of public records revealed that Plaintiff incurred at least
three “strikes” before filing the instant action.
See Allen v. U.S. Marshals Serv., No. 15-cv-3545
(W.D. Mo., dismissed Feb. 2, 2016); Allen v. United
States, No. 15-cv-3524 (W.D. Mo., dismissed Feb. 5,
2016); Allen v. Taney Cnty. Circuit Court, No.
16-cv-3363 (W.D. Mo., dismissed Oct. 20, 2016). See also
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”). A strike is assessed against a prisoner
who files an action that is dismissed as frivolous,
malicious, or for failure to state a claim. 28 U.S.C. §
1915(g). A prisoner-plaintiff who incurs three or more
strikes is ineligible to proceed IFP, unless he faces
imminent danger of serious physical injury. The Complaint
suggests no such thing.
on May 17, 2017, the Court entered an Order denying IFP,
which obligated Plaintiff to pay the $400.00 filing fee.
(Doc. 6, pp. 2-3). Plaintiff was required to pay this amount
in full by June 8, 2017, if he wished to proceed with this
action. (Doc. 6, pp. 4-5). He has not paid any portion of
this fee to date.
Plaintiff disclosed none of his strikes when seeking leave to
proceed IFP, the Court also ordered him to show cause why
sanctions should not be imposed. (Doc. 6, pp. 4-6). The Court
explained that it would dismiss this action with prejudice if
Plaintiff failed to satisfy the show cause order. (Doc. 6,
pp. 6-7). Plaintiff's response was due on or before June
8, 2017. Id. He was warned that failure to respond
to the show cause order by the deadline would result in
dismissal of this action with prejudice. Id. (citing
Fed.R.Civ.P. 41(b)). The deadline has now passed. Plaintiff
has not responded to the show cause order. He has also failed
to request an extension of the deadline for doing so.
the circumstances, the Court deems it appropriate to dismiss
this action with prejudice for failure to comply with an
Order of the Court and as a sanction against Plaintiff for
intentionally misleading the Court in his application for
HEREBY ORDERED that this action is DISMISSED with prejudice
for failure to comply with a court order and as a sanction
against Plaintiff for intentionally misrepresenting that he
is eligible to proceed in forma pauperis in this
case. See Fed. R. Civ. P. 41(b); 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). The
dismissal does not count as one of Plaintiff's
three allotted “strikes” under 28 U.S.C. §
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, if he omits his
litigation history and the fact that he has “struck
out” under 28 U.S.C. § 1915(g) from future IFP
applications filed in this District.
FURTHER 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). 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 St. Tammany Parish Jail in Covington,
Louisiana, 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 ...