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Malone v. Baldwin

United States District Court, S.D. Illinois

November 29, 2017



          STACI M. YANDLE, United States District Judge

         Plaintiff 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.[1] 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.

         Legal Standard

         Pursuant 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).

         If IFP 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).


         Plaintiff 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.

         In 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.

         Plaintiff 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).

         That said, there is ample evidence that Plaintiff has in fact struck out.[2] A review of documents filed in the electronic docket of this Court and the Public Access to Court Electronic Records (“PACER”) website ( 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.

         “Imminent 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)).

         In his 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).[3] 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 ...

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