Hyde et al v. Bradberry et al

Filing 47

ORDER entered by U.S. Magistrate Judge Tom Schanzle-Haskins. Defendants Korte and Hettinger's Motion to Revoke Plaintiff's in forma pauperis Status 41 ALLOWED. Plaintiff's in forma pauperis status is REVOKED. Plaintiff must pay the f ull amount of the filing fee of $350.00 within 14 days of this Order or this case will be dismissed. Defendants Korte and Hettinger's Motion to Stay the Dispositive Motion Deadline 40 is ALLOWED. This case is STAYED pending further order of this Court. See written order. (LB, ilcd)

E-FILED

Friday, 17 June, 2016 09:06:04 AM
Clerk, U.S. District Court, ILCD

UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF ILLINOIS
RONALD WILLIAM HYDE,

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Plaintiff,
v.

NURSE BRADBERRY, et al.,
Defendants.

No.: 15-3014-TSH

ORDER
TOM SCHANZLE-HASKINS, U.S. MAGISTRATE JUDGE:
This cause is before the Court on Defendant Jeff Korte and Randell
Hettinger’s Motion to Revoke Plaintiff’s in forma pauperis Status (d/e 41)
(Motion).
Defendants Korte and Hettinger have filed the instant motion asking
the Court to revoke Plaintiff’s in forma pauperis status and to require him to
pay the full amount of the filing fee owed in order to continue with this case.
Defendants assert that Plaintiff has accumulated at least “three strikes”
under the Prison Litigation Reform Act and may not continue with his in
forma pauperis status as a result.

Defendants have attached to their

Motion an Order from the Honorable Phil Gilbert, United States District

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Judge for the Southern District of Illinois, which outlines the cases in which
Plaintiff has accumulated more than three strikes.
Defendants’ Motion is granted. Initially, the Court notes that Plaintiff’s
failure to completely and truthfully describe and detail his litigation history
constitute a fraud upon the Court that justifies revoking his in forma
pauperis status. As one District Court has noted: “The Court relies on a
party’s litigation history listed in his or her complaint to adhere to the threestrike requirement of 28 U.S.C. § 1915(g), and thus there is a need for
reliable information about prior litigation. As a result, where a party fails to
provide accurate litigation history, the Court may appropriately dismiss the
action for providing fraudulent information to the Court.” Crawford v.
Kalaher, 2013 WL 2898272, * 2 (S.D. Ill. June 13, 2013); Ammons v.
Gerlinger, 547 F.3d 724, 725 (7th Cir. 2008)(termination of the suit is an
appropriate sanction for struck-out prisoner who took advantage of court’s
oversight and was granted leave to proceed IFP); Sloan v. Lesza, 181 F.3d
857, 858–59 (7th Cir. 1999)(litigant who sought and obtained leave to
proceed IFP without disclosing his three-strike status committed a fraud
upon the court).
Plaintiff committed a fraud upon the Court by omission by failing to
provide his litigation history or his three-strikes status. This case is not the
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only case in which Plaintiff has failed to disclose this information as
evidenced by Judge Gilbert’s Orders that the Court incorporates by
reference into this case. Accordingly, Plaintiff cannot continue to proceed
in forma pauperis in this case.
Title 28 U.S. C. § 1915(g) 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.
Id.

Plaintiff has, on three or more prior occasions, accumulated three

strikes under § 1915(g). See Judge Gilbert’s Order identifying cases.
Therefore, Plaintiff can only proceed in forma pauperis if his Complaint
sufficiently alleges that he is under imminent danger of serious physical
injury.
The imminent danger inquiry is two-pronged.

The first prong is

construed narrowly to include genuine emergencies where “time is
pressing” and a “threat . . . is real and proximate.” Heimnerman v. Litscher,
337 F.3d 781, 782 (7th Cir. 2003); Lewis v. Sullivan, 279 F.3d 526, 531 (7th
Cir. 2002). The harm must be occurring “at the time the complaint is filed.”
Ciarpaglini v. Saini, 352 F.3d 328, 330 (7th Cir. 2003). The second prong
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(i.e., danger) must be of “serious physical injury.” 28 U.S.C. § 1915(g);
Fletcher v. Deathridge, 2008 WL 4724173, * 2 (C.D. Ill. Oct. 23, 2008).
Here, Plaintiff has not alleged any imminent danger in his Complaint.
The closest that Plaintiff’s Complaint comes to claiming imminent danger is
his claim that he did not receive treatment for his broken finger. But, that
claim is not the type of “genuine emergency” that would satisfy the
imminent danger prong, especially in this case where Plaintiff is no longer
being housed at the facility where he was allegedly denied medical
treatment.
Because Plaintiff is not under any imminent danger of serious
physical injury and because he has three strikes against him, Plaintiff is not
entitled to continue to proceed in forma pauperis. 28 U.S.C. § 1915(g).
IT IS, THEREFORE, ORDERED:
1.

Defendants Korte and Hettinger’s Motion to Revoke

Plaintiff’s in forma pauperis Status (d/e 41) is GRANTED.
2.

Accordingly,

Plaintiff’s

in

forma

pauperis

status

is

REVOKED because he has three strikes under the Prison Litigation
Reform Act and because he has not demonstrated that he is under
imminent danger of serious physical injury.

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3.

Plaintiff must pay the full amount of the filing fee of $350.00

within fourteen (14) days from the date of this Order.
4.

Plaintiff’s failure to pay timely the filing fee will result in a

dismissal of this case.
5.

Defendants Korte and Hettinger’s Motion to Stay the

Dispositive Motion Deadline (d/e 40) is GRANTED, and this case is
STAYED pending further Order from this Court.
ENTERED: June 17, 2016

____s/ Tom Schanzle-Haskins____
TOM SCHANZLE-HASKINS
UNITED STATES MAGISTRATE JUDGE

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