United States District Court, S.D. Illinois
WILLIAM A. MALONE, # B-52858, Plaintiff,
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
M. YANDLE UNITED STATES DISTRICT JUDGE
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
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.
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.
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.
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. 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).
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.
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.
claims that he is under imminent danger. However, the
Complaint, Motion for Protection Order, and the IFP motion do
not set ...