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Bankston v. Dennison

United States District Court, S.D. Illinois

January 11, 2018

RINALDO BANKSTON, # N-31614, Plaintiff,
v.
WARDEN DENNISON and JAMES BALDWIN, Defendants.

          MEMORANDUM AND ORDER

          STACI M. YANDLE United States District Judge.

         Plaintiff 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).

         IFP Motion

         Plaintiff seeks leave to proceed IFP without prepayment of the Court's usual $350.00[1]filing 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.

         However, 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.”

         When 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).

         Thus, 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.

         The 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)).

         Here, 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 imminent danger.

         Plaintiff's 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).

         The 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.

         Finally, 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 Plaintiff's safety.

         After 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.

         Warning - ...


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