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Malone v. Illinois Dept. of Corrections

United States District Court, S.D. Illinois

December 1, 2017

WILLIAM A. MALONE, # B-52858, Plaintiff,
v.
ILLINOIS DEPT. of CORRECTIONS, PINCKNEYVILLE CORRECTIONAL CENTER, THOMAS SPILLER, C/O BELFORD, DONNA HEIDLEMANN, MAJOR CLELAND, and JOHN DOE 1-7, Defendants.

          MEMORANDUM AND ORDER

          STACI M. YANDLE UNITED STATES DISTRICT JUDGE

         BACKGROUND

         Plaintiff William A. Malone, who is currently incarcerated at Pinckneyville Correctional Center (“Pinckneyville”), brings this pro se civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff raises a number of claims in the Complaint (Doc. 1) and in his “Motion for Protection Order” (Doc. 2), including that the defendants have improperly housed him in an overcrowded cell that violates the Americans with Disabilities Act; that he has been issued “illegal” disciplinary reports and punished with solitary confinement as well as the loss of good conduct credits; and that he has been denied placement in protective custody.

         DISCUSSION

         IFP Motion

         Before the Court screens the Complaint or considers the Motion for Protection Order, it must first address Plaintiff's request to litigate this action without prepaying the full filing fee. The Prison Litigation Reform Act (“PLRA”) requires prisoners to pay the full filing fee. See 28 U.S.C. § 1915(b)(1). However, a prisoner who is unable to prepay the full amount may seek permission to pay the fee over time through monthly trust fund account deductions.

         Plaintiff filed a Motion for Leave to Proceed in forma pauperis (“IFP Motion”) (Doc. 3) along with his Complaint on August 31, 2017. Plaintiff claims that he is unable to pay the filing fee, but 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) (Doc. 6). Despite the absence of that information, the Court will review Plaintiff's eligibility to proceed IFP in light of his litigation history.

         The PLRA sets limits on a prisoner's ability to obtain IFP status. Pursuant to 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.

28 U.S.C. § 1915(g). In other words, a prisoner who has “struck out” by filing three or more cases that were dismissed for one of the reasons set forth under § 1915(g) cannot proceed IFP unless he faces imminent danger of serious physical injury. Id.

         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 already had 10 other cases dismissed as frivolous or for failure to state a claim upon which relief can be granted.[1] 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 only included two of these cases in the summary of his litigation history filed with this case. (Doc. 1-1).

         A prisoner-plaintiff's failure to fully disclose his litigation history, particularly when he seeks leave to proceed IFP, may be grounds for immediate dismissal of the suit. 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-strike status committed a fraud upon the court). Here, Plaintiff made an attempt to list his previous lawsuits when he filed this case (Doc. 1-1). He identified the two 2013 cases which resulted in “strikes” (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)), but did not mention the fact that he was assessed strikes in those cases. (Doc. 1-1, p. 1). He also included 7 other cases filed in 2012 and 2013 which did not result in strikes. However, he omitted any mention of the 2016 cases that resulted in 8 additional strikes. Plaintiff's explanation for his failure to include the full litigation history is that his legal paperwork has been destroyed or lost at the hands of prison officials. (Doc. 1-1, pp. 1-3). Nevertheless, because Plaintiff has 10 “strikes” for purposes of § 1915(g), he may not proceed IFP in this case unless he demonstrates that he is under imminent danger of serious physical injury.

         “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)). In general, 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” and when prisoners “allege only a past injury that has not recurred, courts deny them leave to proceed IFP.” Id. at 330 (citing Abdul-Wadood v. Nathan, 91 F.3d 1023 (7th Cir. 1996)).

         Plaintiff claims that he is under imminent danger. However, the Complaint, Motion for Protection Order, and the IFP motion do not set ...


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