United States District Court, S.D. Illinois
WILLIAM A. MALONE, Plaintiff,
JOHN BALDWIN, IDOC, SHERRY BENTON, KAREN JAIMET, THOMAS SPILLER, JACQUELINE LASHBROOK, BETH SPILLER, WILSON, LARUE LOVE, CAROL A. MCBRIDE, CHARLES W. HECK, EDWARDS, GOLDBERG, MYERS, BRADLEY, FURLOW, FRANK, CLARK, JAMES, WEBB, D. FLATT, JARROD E. SELBY, SALOMINSKI, CLAY WHEELAN, KIMBERLY D. DEEN, CLIFF W. YANZANDT, KATHY L. MELVIN, B. LIND, and M. HARTMAN, Defendants.
MEMORANDUM AND ORDER
M. YANDLE, United States District Judge
William Malone, currently incarcerated at Pinckneyville
Correctional Center (“Pinckneyville”), has
brought this pro se civil rights action pursuant to
42 U.S.C. § 1983. Currently before the Court is
Plaintiff's motion for leave to proceed in forma pauperis
(“IFP”), filed on August 23, 2017. (Doc. 6).
Plaintiff seeks leave to proceed IFP in this case without
prepayment of the Court's usual $400.00 filing fee in a
civil case. See 28 U.S.C. § 1914(a).
After reviewing the Complaint and the motion, the Court
DENIES Plaintiff's motion to proceed
IFP, and will DISMISS this case with
prejudice as a sanction for Plaintiff's failure
to disclose his litigation history.
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.
status is granted, a prisoner is assessed an initial partial
filing fee according to the formula set forth in 28 U.S.C.
§ 1915(b)(1)(A)-(B). Thereafter, a prisoner is required
to make monthly payments of twenty percent of the preceding
month's income credited to the prisoner's trust fund
account. See 28 U.S.C. § 1915(b)(2). This
monthly payment must be made each time the amount in the
account exceeds $10.00 until the filing fee in the case is
paid. See id. Importantly, a prisoner incurs the
obligation to pay the filing fee for a lawsuit when the
lawsuit is filed, and the obligation continues regardless of
later developments in the lawsuit, such as denial of leave to
proceed IFP or dismissal of the suit. See 28 U.S.C.
§ 1915(b)(1), (e)(2); Lucien v. Jockisch, 133
F.3d 464, 467 (7th Cir. 1998); In re Tyler, 110 F.3d
528, 529-30 (8th Cir. 1997).
claims that he is unable to pay the filing fee. However, he
has failed to submit his prisoner trust fund account
statement for the 6 months prior to the filing of this
action, as required by 28 U.S.C. § 1915(a)(2). That
said, if Plaintiff had submitted his trust fund statement,
the Court would still be compelled to deny his motion.
Under 28 U.S.C. § 1915(g),
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.
other words, a prisoner who has “struck out” by
filing three or more cases that were dismissed for one of the
reasons identified in § 1915(g) cannot proceed IFP
unless he faces imminent danger of serious physical injury.
Id. Here, Plaintiff has struck out and does not fall
within the imminent danger exception.
did not use the Court's standard form in filing this
lawsuit, but he is a frequent litigator and has used the
Court's form in the past. As such, he is familiar with
his obligation to disclose his litigation history.
Nevertheless, Plaintiff does not list or describe his
litigation history either in the Complaint or in his Motion
to Proceed IFP. Relatedly, although Plaintiff's Complaint
alleges that he is being retaliated against in part for his
prior lawsuits, which he claims are documented in Exhibits A
through Q, none of the exhibits attached to the Complaint
address any prior lawsuits. (Doc. 1-1 through Doc. 1-3).
said, there is ample evidence that Plaintiff has in fact
struck out. A review of documents filed in the
electronic docket of this Court and the Public Access to
Court Electronic Records (“PACER”) website
(www.pacer.gov) discloses that Plaintiff has filed
approximately 30 cases and has had 10 of those cases
dismissed as frivolous or for failure to state a claim upon
which relief can be granted. See Malone v. Ardis,
No. 13-cv-1543 (C.D. Ill.Dec. 3, 2013); Malone v. City of
Peoria, 13-cv-1559 (C.D. Ill. Feb. 20, 2014); Malone
v. Hill et al., No. 16-cv-973 (S.D. Ill. Oct. 26, 2016);
Malone v. Fritts, et al., No. 16-cv-200 (S.D. Ill.
Nov. 7, 2016); Malone v. Unknown Party, No.
16-cv-974 (S.D. Ill. Nov. 8, 2016); Malone v.
Duvall, No. 16-cv-977 (S.D. Ill. Nov. 29, 2016);
Malone v. IDOC, et al., No. 16-cv-978 (S.D. Ill.Dec.
8, 2016); Malone v. Shah, et al., No. 16-cv-972
(S.D. Ill.Dec. 30, 2016); Malone v. Orange Crush,
No. 16-cv-975 (S.D. Ill.Dec. 30, 2016); and Malone v.
Groves, et al., No. 16-cv-979 (S.D. Ill. Jan. 10, 2017).
Plaintiff filed this suit on August 23, 2017. (Doc. 1). All
of the above - referenced strikes were assessed prior to
Plaintiff filing the instant suit on August 23, 2017. He had
an obligation to disclose all of his cases and his strikes to
the Court - he failed to do so. Because Plaintiff has more
than 3 strikes, he is barred from proceeding IFP unless the
imminent danger exception applies.
danger” within the meaning of 28 U.S.C. § 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)). 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.” Id. at 330 (citing Abdul-Wadood v.
Nathan, 91 F.3d 1023 (7th Cir. 1996)).
Complaint, Plaintiff frequently uses the term “imminent
danger, ” but his allegations fail to establish it.
Plaintiff generally alleges that he is bringing claims for
failure to protect, retaliation and violations of the
Americans with Disabilities Act (“ADA”) and
Rehabilitation Act (“RA”). (Doc. 1, p. 1). In
Count 1, he alleges that Defendants continually try to place
him in an “illegal” 4-man cell (Plaintiff is in a
wheelchair), and that when he refuses that placement out of
concerns for his safety (there are inmates on Plaintiff's
Keep Separate From (“KSF”) list at
Pinckneyville), he is punished with segregation. (Doc. 1, pp.
12-13). Although Plaintiff claims that he needs
protection from an unnamed gang leader who has put out a hit
on him, he also acknowledges that he has made this same
allegation in several past and pending lawsuits. (Doc. 1, p.
12). Allegedly, the unnamed gang leader returned to
Pinckneyville on August 14, 2017, and ...