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Smith v. IDOC

United States District Court, S.D. Illinois

March 29, 2018

JARED M. SMITH, # K-58441, Plaintiff,
v.
IDOC, MATTHEW SWALLS, KESS ROBERSON, JOHN BALDWIN, DAVID WHITE, T. WENTWORTH, and COURTWRIGHT, Defendants.

          MEMORANDUM AND ORDER

          NANCY J. ROSENSTENGEL, United States District Judge.

         Plaintiff 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).

         The 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 error.

         In Forma Pauperis Status and Strikes

         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). 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[1] 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).

         Plaintiff 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).

         In the 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[2] 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).

         This 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.)).

         Nothing 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.[3] (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.

         Plaintiff 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.

         Having 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. 1996)).

         Here, 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 ...


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