United States District Court, S.D. Illinois
MEMORANDUM AND ORDER
HERNDON, DISTRICT JUDGE
currently incarcerated at Pontiac Correctional Center
(“Pontiac”), has brought this pro se
civil rights action pursuant to 42 U.S.C. § 1983 for
alleged violations of his constitutional rights that took
place at Shawnee Correctional Center (“Shawnee”).
This matter is before the Court on Plaintiff's motion for
leave to proceed in forma pauperis
(“IFP”). (Doc. 4). 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).
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 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.
IFP Motion is sufficient as to form, but this is not the end
of the matter. Pursuant to 28 U.S.C. § 1915A, a district
court “shall review, before docketing, if feasible or,
in any event, as soon as practicable after docketing, a
complaint in a civil action in which a prisoner seeks redress
from a governmental entity or officer or employee of a
governmental entity.” 28 U.S.C. § 1915A(a). The
statute provides further that, “[o]n review, the court
shall identify cognizable claims or dismiss the complaint, or
any portion of the complaint, if the complaint . . . is
frivolous, malicious, or fails to state a claim upon which
relief may be granted[.]” 28 U.S.C. § 1915A(b)(1).
Under 28 U.S.C. § 1915,
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). Court documents are, of course,
public records of which the Court can take judicial notice.
See Henson v. CSC Credit Servs., 29 F.3d 280, 284
(7th Cir. 1994).
did not use this Court's standard form in drafting his
Complaint, though he has used it in several of his previous
lawsuits. See Bankston v. IDOC, No. 15-cv-1272-SMY
(S.D. Ill.Dec. 11, 2015); Bankston v. IDOC, No.
15-cv-1273-JPG (S.D. Ill.Dec. 11, 2015); Bankston v.
IDOC, No. 15-cv-1274-SMY (S.D. Ill.Dec. 11, 2015). That
form specifically requires litigants to describe all of their
lawsuits that they have filed in state or federal court
relating to their imprisonment. See Bankston v.
IDOC, No. 15-cv-1273-JPG at Doc. 1, p. 3. In his
handwritten Complaint in this action, Plaintiff does not
disclose any of his litigation history. His first Motion to
Proceed IFP is likewise silent on the matter.
of documents filed in the Public Access to Court Electronic
Records (“PACER”) website
(www.pacer.gov) reveals that Plaintiff has filed 5
other federal lawsuits while a prisoner, excluding any habeas
proceedings. It further discloses the following actions
brought by Plaintiff while a prisoner seeking redress from
officers or employees of a governmental entity that have been
dismissed pursuant to 28 U.S.C. § 1915A on the grounds
that they were frivolous, malicious, or failed to state a
claim upon which relief may be granted: Bankston v.
IDOC, No. 15-cv-1272-SMY (S.D. Ill.Dec. 11, 2015)
(dismissed Dec. 11, 2015 for failure to state a claim upon
which relief may be granted); Bankston v. IDOC, No.
15-cv-1273-JPG (S.D. Ill.Dec. 11, 2015) (dismissed Dec. 11,
2015 for failure to state a claim upon which relief may be
granted); and Bankston v. IDOC, No. 15-cv-1274-SMY
(S.D. Ill.Dec. 11, 2015) (dismissed Dec. 11, 2015, with an
amended order filed on Jan. 5, 2016 noting the dismissal
would count as Plaintiff's third strike). Plaintiff filed
another suit this past year, Bankston v. Williams,
No. 17-cv-070-DRH (S.D. Ill. March 28, 2017), that was
dismissed after the Court denied Plaintiff's IFP Motion
pursuant to § 1915(g), and Plaintiff failed to pay his
filing fee. See Id. at Doc. 7. Like in Bankston
v. Williams, because Plaintiff has three
“strikes” for purposes of § 1915(g), he may
not proceed IFP in this case unless he is under imminent
danger of serious physical injury.
filed this suit on November 6, 2017. (Doc. 1). All of the
above strikes were assessed prior to filing suit. Plaintiff
had an obligation to disclose those strikes to the Court. He
failed to do so.
United States Court of Appeals for the Seventh Circuit has
explained that “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)).
case, Plaintiff's Complaint, as well as Plaintiff's
IFP Motion, are devoid of allegations that might lead the
Court to conclude that Plaintiff is under imminent danger of
serious physical injury, and Plaintiff has not alleged that
he is in imminent danger. Plaintiff's allegations involve
lack of accommodation for his speech impairment and learning
disabilities at Shawnee. (Doc. 1). Plaintiff is no longer
housed at Shawnee, nor does he provide any information to
suggest this lack of accommodation puts him in danger.
troublingly, Plaintiff's filings suggest that he may have
intentionally misled the Court. The Court's standard
civil rights complaint form, which he has used in the past,
specifically instructs litigants to disclose all prior
litigation relating to their imprisonment. See Bankston
v. IDOC, No. 15-cv-1273-JPG at Doc. 1, p. 3. Not only
did Plaintiff omit all reference to his prior “strikes,
” Plaintiff completely withheld his litigation history
in his Complaint and IFP Motion. Plaintiff signed and dated
the Complaint October 3, 2017. (Doc. 1).
plaintiff's failure to disclose his litigation history,
particularly when he seeks to proceed IFP, is grounds for
immediate dismissal of the suit. Hoskins v. Dart,
633 F.3d 541, 543 (7th Cir. 2011) (dismissal with prejudice
appropriate where Court-issued complaint form clearly warned
Plaintiff that failure to provide litigation history would
result in dismissal); 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). Plaintiff shall be ordered
to show cause why his case should not be dismissed with
prejudice as a sanction for failing to disclose his