United States District Court, S.D. Illinois
JARED M. SMITH, # K-58441, Plaintiff,
IDOC, MATTHEW SWALLS, KESS ROBERSON, JOHN BALDWIN, DAVID WHITE, T. WENTWORTH, and COURTWRIGHT, Defendants.
MEMORANDUM AND ORDER
J. ROSENSTENGEL, United States District Judge.
Jared M. Smith, an inmate of the Illinois Department of
Corrections (“IDOC”) currently incarcerated at
Vienna Correctional Center (“Vienna”), has
brought this pro se civil rights action pursuant to
42 U.S.C. § 1983. He claims that Defendants are
unlawfully holding him in prison based on the 27-year
sentence reflected in the “Judgment-Sentence to
Illinois Department of Corrections” (Doc. 1, p. 13)
dated June 24, 2010, in his criminal case, People v.
Smith, Vermilion County Circuit Court Case No.
97-CF-570. Plaintiff points out that the sentencing report
filed by the State's Attorney in his criminal case (Doc.
1, p. 12) states that he was sentenced to only twelve years
on each of two counts, to be served concurrently. He claims
that the mittimus transmitted to the IDOC when he was placed
in IDOC custody stated he had a 12-year sentence, as the
judge orally pronounced in court. (Doc. 1, pp. 26-27). Two
and a half years later, however, a “different
mittimus” with the 27-year sentence was submitted to
the Shawnee Correctional Center, where he was then confined.
(Doc. 1, p. 26). He argues that the original 12-year mittimus
was correct, but Defendants are relying on the 27-year
mittimus, which Plaintiff claims is invalid. (Doc. 1, p. 25).
Complaint is now before the Court for a preliminary review
pursuant to 28 U.S.C. § 1915A. Before undertaking this
review, however, the Court finds it necessary to revisit the
matter of Plaintiff's pauper status. Upon a more complete
examination of Plaintiff's litigation history, the Court
concludes that he was granted leave to proceed in forma
pauperis (“IFP”) in this action (Doc. 9) in
Forma Pauperis Status and Strikes
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). 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
($350.00 where IFP status is granted) 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. 1997).
provided his inmate trust fund statement in response to this
Court's order, and his IFP motion otherwise complied with
the above requirements. He was granted leave to proceed IFP
on March 14, 2018. (Doc. 9). Unfortunately, however, the
Court inadvertently overlooked the fact that Plaintiff has
accumulated three “strikes” within the meaning of
28 U.S.C. § 1915(g), which provides:
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).
Complaint, Plaintiff accurately listed his previous lawsuits
as instructed. (Doc. 1, pp. 4-9). He acknowledged that two of
his previously-dismissed cases were “strikes:”
Smith v. Roberson, Case No. 17-cv-03092-JES (C.D.
Ill. dismissed Sept. 21, 2017); and Smith v. Walsh,
Case No. 17-cv-03105-JES (C.D. Ill. dismissed Sept. 21,
2017). (Doc. 1, pp. 5-6). But when describing the case that
this Court previously informed him was his third “strike,
” Smith v. City of Danville, et al., Case No.
17-cv-2323-CSB-EIL (C.D. Ill. dismissed Jan. 5, 2018),
Plaintiff states: “Court ruled in favor of plaintiff,
voiding any strikes, even though do [sic] to other
circumstances, the court had to dismiss the case.”
(Doc. 1, p. 7).
statement is a mischaracterization of the Central
District's order, if not an outright misrepresentation.
In no way did that court rule “in favor of
plaintiff.” Instead, the court denied Plaintiff leave
to proceed IFP and dismissed the case pursuant to 28 U.S.C.
§ 1915(e)(2)(B), which directs that the court
“shall dismiss” a case if the court determines
that the action “(i) is frivolous or malicious; (ii)
fails to state a claim on which relief may be granted; or
(iii) seeks monetary relief against a defendant who is immune
from such relief.” 28 U.S.C. § 1915(e)(2)(B).
Invoking Heck v. Humphrey, 512 U.S. 477 (1994), the
court stated: “Because Plaintiff cannot challenge his
state conviction in this action, his complaint warrants
dismissal under 28 U.S.C. § 1915(e)(2)(B).” (Doc.
4, p. 2 in Case No. 17-cv-2323-CSB-EIL (C.D. Ill.)).
in the Central District's order “void[ed] any
strikes, ” as Plaintiff claims. In fact, the order
never uses the word “strike, ” and it does not
state explicitly whether or not the Central District
considered the dismissal to be a strike. This Court notified
Plaintiff on January 29, 2018, however, that in no uncertain
terms it considers the dismissal of Case No.
17-cv-2323-CSB-EIL (C.D. Ill.) to be a strike. (Doc. 5, p. 4, n.
3, in Jones v. IDOC, et al., Case No.
18-cv-142-DRH). Plaintiff may disagree with that conclusion,
but he is not free to ignore it; likewise, he is not free to
ignore this Court's clear warning in the same Order that
he is obligated to disclose all of his “strikes”
when bringing a new civil rights case. Id.
did not entirely comply with this Court's directive in
Jones v. IDOC, et al., Case No. 18-cv-142-DRH, to
disclose all of his strikes in his future cases-he listed his
prior cases, but his description of the dismissal of Case No.
17-cv-2323-CSB-EIL (C.D. Ill.) appears to be an attempt to
conceal the status of that dismissal as a strike.
Plaintiff's obfuscation, however, did not mislead the
Court into granting his IFP motion; instead, that order
resulted from a clerical error. As such, the Court does not
find that dismissal of this action as a sanction is warranted
at this time.
concluded (again) that Plaintiff has accumulated three
strikes, the Court must consider whether Plaintiff's
Complaint overcomes the three strike bar in § 1915(g)
with a showing that he is under imminent danger of serious
physical injury. The 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.
the Complaint concerns only the validity of Plaintiff's
27-year sentence; this matter does not suggest any imminent
danger, physical or otherwise. Although Plaintiff describes
physical and other hardships which he has endured during the
past three years of his incarceration and states, “I
feel I am in imminent danger, ” (Doc. 1, pp. 28-29), he
fails to set forth any factual allegations ...