United States District Court, S.D. Illinois
MEMORANDUM AND ORDER
M. YANDLE United States District Judge.
Rinaldo Bankston, who is currently incarcerated at Shawnee
Correctional Center (“Shawnee”), brings this
action pursuant to 42 U.S.C. § 1983. This matter is now
before the Court for preliminary review. Before the Court can
screen the Complaint pursuant to 28 U.S.C. § 1915A,
however, it must first address Plaintiff's Motion for
Leave to Proceed in forma pauperis (“IFP
Motion”). (Doc. 2).
seeks leave to proceed IFP without prepayment of the
Court's usual $350.00filing fee in a civil case. See
28 U.S.C. § 1914(a). 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 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). Plaintiff's IFP Motion and affidavit
appear to satisfy these requirements.
an inmate may not bring a civil action or appeal a civil
judgment “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 ground 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).
Plaintiff is subject to the “three strikes rule.”
setting forth his litigation history in the Complaint (Doc.
1, p. 3), Plaintiff disclosed eleven actions, indicating that
they were pending, settled or dismissed. However, Plaintiff
failed to disclose that the following cases were dismissed as
frivolous or for failure to state a claim upon which relief
may be granted: (1) Bankston v. Cook County Jail, et
al., No. 12-cv-4843 (dismissed August 29, 2012, failure
to state a claim); (2) Bankston v. Thaler et al.,
No. 17-cv-1938 (N.D. Ill., dismissed June 1, 2017, failure to
state a claim); Bankston v. Dart et al., No.
17-cv-1421 (N.D. Ill., dismissed August 25, 2017, failure to
state a claim); and Bankston v. Vandalia Correctional
Center et al., No. 17-cv-990-SMY (S.D. Ill., dismissed
October 31, 2017, legally frivolous).
prior to commencing this action, Plaintiff “struck
out” by filing 3 or more prisoner actions that were
dismissed on the grounds that they were frivolous, malicious,
or failed to state a claim upon which relief may be granted.
Because Plaintiff has accumulated at least 3 strikes (4 in
fact) for purposes of § 1915(g), he may not proceed IFP
in this or any other pending case in federal court unless he
is in imminent danger of serious physical injury. Having
reviewed Plaintiff's Complaint, the Court concludes that
he does not satisfy this requirement.
Seventh Circuit has explained that “imminent
danger” requires a “real and proximate”
threat. See Ciarpaglini v. Saini, 352 F.3d 328, 330
(7th Cir. 2003). Allegations of past harm are not sufficient
to state imminent danger; “the harm must be imminent or
occurring at the time the complaint is filed.”
Id. A plaintiff does not sufficiently allege
imminent danger when he references a past injury that has not
recurred. Id. “By using the term
‘imminent, ' Congress indicated that it wanted to
include a safety valve for the ‘three strikes' rule
to prevent impending harms, not those harms that had already
occurred.” Abdul-Akbar v. McKelvie, 239 F.3d
307, 315 (3d Cir. 2001). Additionally, courts “deny
leave to proceed IFP when a prisoner's claims of imminent
danger are conclusory or ridiculous.”
Ciarpaglini, 352 F.3d at 331 (citing Heimermann
v. Litscher, 337 F.3d 781, 782 (7th Cir. 2003)).
Plaintiff does not claim that he faces imminent danger at
this time. Instead, he lists various frustrations and
complaints about prison life. For instance, Plaintiff
complains about the grievance procedure (Doc. 1, pp. 15-18);
dirty and “raggedy” bedding material and clothing
issued to prisoners (Doc. 1, p. 4); cell windows that are
broken and electronic doors that sometimes do not open
properly (Doc. 1, p. 4); dirty ventilation and lack of air
conditioning (Doc. 1, p. 7); inadequacies in the law library
(Doc. 1, p. 9); a dirty laundry room (Doc. 1, p. 5); and mold
in the showers (Doc. 1, p. 6). Moreover, some of these
incidents took place in the past and do not appear to be
ongoing (e.g., prior placement in an extremely cold cell).
Plaintiff also speculates that prison officials are taking
“money under the table” because he and other
prisoners have not been receiving their full state pay. (Doc.
1, p. 17). None of these allegations are sufficient to show
allegations pertaining to recent medical treatment for his
degenerative disc disease, leg/ankle pain and sinus problems
(Doc. 1, pp. 12-14) also fall short of stating imminent
danger. According to the Complaint, in October 2017,
Plaintiff was seen by several nurses regarding his medical
complaints. (Doc. 1, pp. 12-13). Although Plaintiff
references several medical issues, he only provides specifics
regarding treatment for leg/ankle pain. Id.
Plaintiff claims that his leg was swollen, hot to the touch,
and severely painful. Id. He was seen by several
nurses before “he was actually ever truly referred to
be seen by the doctor.” (Doc. 1, p. 13).
Complaint indicates that Plaintiff was examined by a nurse on
October 8, 2017, October 21, 2017, October 28, 2017 and
October 31, 2017. (Doc. 1, pp. 12-14). On October 31, 2017,
the examining nurse took Plaintiff's vitals, examined his
leg, took measurements of the “knot” in his leg,
prescribed Ibuprofen, and referred him to a physician. (Doc.
1, p. 14). Although Plaintiff claims that he is still
experiencing severe pain in his and is dissatisfied with the
nursing staff (describing them as “lazy” and
“negligent”), these facts do not suggest that
Plaintiff is presently being denied medical care. On the
contrary, Plaintiff was seen by medical staff at least 4
times during the month of October and, on his final visit,
was referred to a physician for further care.
some of Plaintiff's allegations, though serious, are
really generalized concerns about dangers at Shawnee and are
not specific to Plaintiff. Plaintiff expresses concern about
the “many assaults by C/Os on offenders, offenders on
offenders [and] the rapes” and asks “why
aren't there any surveillance cameras?” (Doc. 1, p.
18). The Court does not take allegations of physical or
sexual assault lightly. However, alleging that other
prisoners have been assaulted at Shawnee does not establish
that there is presently a real and proximate threat to
carefully considering the allegations in the Complaint, the
Court concludes that Plaintiff faces no imminent danger of
serious physical injury and cannot overcome the 3-strikes
hurdle set forth under § 1915(g). Accordingly,
Plaintiff's IFP Motion shall be denied.