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Mitchell v. Foster

United States District Court, S.D. Illinois

February 14, 2018

DANNEL M. MITCHELL, #R-07374, Plaintiff,



         Plaintiff Dannel Mitchell, an inmate who is currently incarcerated at Western Illinois Correctional Center (“Western Illinois”), brings this civil rights action pursuant to 42 U.S.C. § 1983 against officials at Vandalia Correctional Center (“Vandalia”) for violations of his constitutional rights. (Doc. 1). Plaintiff claims that (1) between August and November 2015, he repeatedly complained to Defendants about a brown recluse spider infestation in his cell; (2) Defendants ignored his complaints; and (3) on October 25, 2015, Plaintiff suffered from a brown recluse spider bite, resulting in pain and suffering. (Doc. 1, pp. 5-8). He seeks monetary damages. (Doc. 1, p. 8).

         Along with the Complaint, Plaintiff filed a Motion for Leave to Proceed in forma pauperis (“IFP Motion”). (Doc. 2). Before screening the Complaint under 28 U.S.C. § 1915A, the Court must first address Plaintiff's eligibility for IFP status in this case. 28 U.S.C. § 1914(a). Because Plaintiff is unable to satisfy 28 U.S.C. § 1915(g), the IFP Motion must be DENIED.

         IFP Motion

         Plaintiff seeks the Court's permission to proceed without prepaying the full $400.00[1]filing fee for this action. 28 U.S.C. § 1914(a). Under 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). Plaintiff's IFP Motion satisfies these requirements.[2](Doc. 2, pp. 1-5).

         Even so, Plaintiff is barred from proceeding IFP under 28 U.S.C. § 1915(g). Section 1915(g) prohibits a prisoner from bringing a civil action or appealing a civil judgment IFP, “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.” See 28 U.S.C. § 1915(g). Plaintiff “struck out” under § 1915(g) before filing this action and is therefore subject to the three-strikes bar. (Doc. 1, pp. 2-3).

         The Public Access to Court Electronic Records (“PACER”) website ( reveals that Plaintiff filed more than three prior civil actions that were dismissed as frivolous, malicious, or for failure to state a claim upon which relief may be granted. See Henson v. CSC Credit Servs., 29 F.3d 280, 284 (7th Cir. 1994) (courts can take judicial notice of public records which include court records). These lawsuits include Mitchell v. Baldwin, No. 16-cv-0278-NJR (S.D. Ill. dismissed Aug. 9, 2016); Mitchell v. Lupert, No. 16-cv-00486-SMY (S.D. Ill. dismissed June 14, 2016);[3] Mitchell v. Dennison, No. 16-cv-01189-MJR (S.D. Ill. dismissed Jan. 12, 2017); and Mitchell v. Gateway Found., No. 17-cv-02741 (N.D. Ill. dismissed April 27, 2017). Each of these dismissals counts as a “strike” under § 1915(g). Id.

         Because Plaintiff has “struck out” under § 1915(g), he cannot proceed IFP unless he is under imminent danger of serious physical injury. 28 U.S.C. § 1915(g). “[I]mminent danger” within the meaning of § 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.” Ciarpaglini, 352 F.3d 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)).

         The allegations in the Complaint do not support Plaintiff's assertion that he is in imminent danger of serious physical injury. (Doc. 1, pp. 1-8). Plaintiff's claims focus on events that occurred at Vandalia in 2015. Id. In the Complaint, he alleges that he repeatedly complained to officials about a brown recluse spider infestation in his cell. (Doc. 1, p. 5). Plaintiff was especially concerned about the infestation because he is immunocompromised, and feared that a spider bite could expose him to opportunistic infections. Id. According to the Complaint, officials ignored his complaints and, on October 25, 2015, he was bitten by a brown recluse spider. (Doc. 1, pp. 5-8). Plaintiff seeks monetary damages from the defendants. (Doc. 1, p. 8).

         The Complaint focuses on past injuries. The conduct giving rise to Plaintiff's claims took place in 2015. (Doc. 1, pp. 1-8). The events giving rise to this action occurred at Vandalia. Id. However, Plaintiff is no longer housed there. (Doc. 1, p. 1). He is currently housed at Western Illinois. Id. None of his claims pertain to his current confinement. Id. Past injuries, such as those described in the Complaint, do not support a finding of imminent danger under § 1915(g). See Ciarpaglini, 352 F.3d at 330.

         Plaintiff nonetheless insists that he is in imminent danger of serious physical injury. (Doc. 1, p. 4). In a one-page statement that he filed with the Complaint, he explains:

Because of defendant's negligence I grossly continue to suffer from P.T.S.D., Major Depression, and anxiety because of the horrid injuries of wanton neglect caused to my person by defendant's. In-which, I am currently taking Rem[e]ron for major depression, bus[p]ar for anxiety, and Pr[a]z[o]sin for nightmares. Defendant's named in this complaint knowingly participated in voluntered negligence, and deliberate indifference /w purposeful intent to harm, and place in danger, Defendant's liable actions has placed me in danger of being suceptible to commit suicide. Therefore, placeing me in imminent, irreparable danger of permanent injury. The thought's of committimg suicide plaintiff suffer from caused by defendant's is imminent because of the lack of attention (ignoreing) the relief I seek. The defendant's interference /w unconstitutional policies, practices /w act's of injustice caused violations to my inalienable constitutional right's in my vulnerable state has left me hopeless, [and] helpless. I now have no faith in God leaveing me an atheist. I do not see the purpose of my living in a civilized soceity that placed me in the care of state actor's whom has confused me. In, conclusion I am in imminent danger of serious physical injuries, and or irreparable harm to self because of defendant's hateful crimes of negligence. The defendant's purposeful act's of punishment of discrimination has left me in danger!

(Doc. 1, p. 4). Plaintiff submitted virtually the same statement with six other complaints that he filed in this District between January 22, 2018, and February 1, 2018. See Mitchell v. Dennison, No. 18-cv-00118-DRH (S.D. Ill. Jan. 22, 2018) (Doc. 1, p. 6); Mitchell v. Wexford Health Care Servs., No. 18-cv-00119-MJR (S.D. Ill. Jan. 22, 2018) (Doc. 1, p. 7); Mitchell v. Baldwin, No. 18-cv-00123-SMY (S.D. Ill. filed Jan. 22, 2018) (Doc. 1, p. 6); Mitchell v. Heberer, No. 18-cv-00121-DRH (S.D. Ill. filed Jan. 22, 2018) (Doc. 1, p. 6); Mitchell v. Pace, No. 18-cv-00122-MJR (S.D. Ill. filed Jan. 22, 2018) (Doc. 1, p. 6); Mitchell v. Jackson-Pearson, No. 18-cv-00158-SMY-DGW (S.D. Ill. Feb. 1, 2018) (Doc. 5, p. 5) (transferred Feb. 2, 2018). None of these complaints address the denial of medical and/or mental health care at Western Illinois, where he is currently confined, although the one-page statement focuses on that particular deprivation.

         Plaintiff also filed two other lawsuits in this District that focused on medical care claims against officials at Western Illinois. Both cases were transferred to the Central District of Illinois. Mitchell v. Watson, No. 18-cv-00110-NJR (S.D. Ill. filed Jan. 19, 2018) (transferred Jan. 22, 2018); Mitchell v. Watson, No. 18-cv-00136-SMY (S.D. Ill. filed Jan. 25, 2018) (transferred Jan. 29, 2018). Although Plaintiff's claim of imminent danger may support his request for IFP status in one or both of those cases, [4] it is unrelated to the claims he asserts against officials at ...

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