Ellison v. Anderson et al

Filing 7

MERIT REVIEW OPINION entered by Judge Sue E. Myerscough on 8/8/2016. Plaintiff's petition to proceed in forma pauperis is revoked 3 because Plaintiff has accumulated three strikes under 28 U.S.C. § 1915(g) and no plausible inference aris es that he is under imminent danger of serious physical harm. The 7/25/2016 text order assessing an initial partial filing fee is vacated. This case is DISMISSED WITHOUT PREJUDICE to, by September 30, 2016, filing a motion to reopen with the $ 400 filing fee or filing a motion to reconsider if Plaintiff can make truthful allegations which allow an inference that he is currently in imminent danger of serious physical harm. Plaintiff's pending motions are denied without prejudice to renewing if the case is reopened. (MAS, ilcd)(MAS, ilcd)

E-FILED

Monday, 08 August, 2016 11:36:31 AM
Clerk, U.S. District Court, ILCD

UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF ILLINOIS
BENNIE K. ELLISON,
Plaintiff,
v.
ANDRE ANDERSON,
et al.
Defendants.

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16-CV-3209

MERIT REVIEW OPINION
Plaintiff filed this case pro se from the Western Illinois
Correctional Center, along with a petition to proceed in forma
pauperis. Plaintiff cannot proceed in forma pauperis unless he is
“under imminent danger of serious physical injury” because he has
accumulated at least three “strikes” under 28 U.S.C. § 1915(g). 28
U.S.C. § 1915(g).
Plaintiff alleges that he told staff that his roommate, inmate
Anderson, was threatening Plaintiff, but staff told Plaintiff he would
have to refuse housing and go to segregation to get away from
inmate Anderson. On June 24, 2016, Plaintiff awoke to discover

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inmate Anderson’s hands either on or moving away from Plaintiff’s
penis. Plaintiff reported the incident, and his attachments reflect
that Plaintiff and Anderson were separated and Plaintiff’s
allegations were referred for investigation and as a claim under the
Prison Rape Elimination Act, 42 U.S.C. §15601, et seq. Plaintiff
alleges that Defendant Maggson, the investigator, has accused
Plaintiff of lying and has threatened disciplinary action and a
potential criminal case against Plaintiff for lying. After Plaintiff
reported the incident, he was celled with an inmate named Allen,
whom Plaintiff alleges is unsanitary, “coughing over everything, not
washing hands after sitting down, compulsive, impulsive behavior.”
(Compl. p. 3.) Plaintiff alleges in his motion for a temporary
restraining order that he is on the same unit as an inmate “Fry” but
Plaintiff does not say why Fry poses a threat to Plaintiff. Plaintiff
asks in his motion for a temporary restraining order to be placed in
protective custody. Plaintiff also seems to be challenging the
refusal to approve him for work release or to transfer him to Dixon
Correctional Center. The attachments to the Complaint reflect that
Plaintiff was submitted for a transfer to Dixon on July 15, 2016.
(Compl. p. 19.)
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Plaintiff’s allegations do not allow a plausible inference that he
is in “imminent danger of serious physical harm” as required to
allow him to proceed in forma pauperis. Imminent harm means
that the harm is occurring or the threat that the harm will occur
soon is “real and proximate.” Heimbermann v. Litscher, 337 F.3d
781 (7th Cir. 2003)(affirming district court’s conclusion that past
imminent danger does not satisfy 28 U.S.C. § 1915(g))(“The
‘imminent danger’ exception to § 1915(g)'s ‘three strikes’ rule is
available ‘for genuine emergencies,’ where ‘time is pressing’ and ‘a
threat ... is real and proximate.’”)(quoted cite omitted). “Allegations
of past harm do not suffice; the harm must be imminent or
occurring at the time the complaint is filed.” Ciarpaglini v. Saini,
351 F.3d 328, 330 (7th Cir. 2003); see also Moore v. Tobiaz, 2013
WL 1741949 (W.D. Wis.)(not reported in F.Supp.2d)(“To the extent
that Moore claims that officials have failed to protect him from
harm in the past, those allegations do not demonstrate that there is
imminent danger of serious physical harm.”)
If Plaintiff were still being celled with inmate Anderson, that
would be an imminent danger, but Plaintiff has a different cellmate
now and Plaintiff has been put in for a transfer to Dixon
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Correctional Center. No plausible inference arises on the present
allegations that inmate Anderson or inmates Allen or Fry pose a
current risk of any physical harm to Plaintiff. The rest of Plaintiff’s
allegations are disagreements with officials’ decisions that also do
not implicate any imminent threat of physical harm to Plaintiff.
Plaintiff’s petition to proceed in forma pauperis will be denied
because Plaintiff’s allegations do not allow a plausible inference that
he is in any imminent danger. This case will be closed, but Plaintiff
may move to reopen the case in 30 days if he believes he can make
truthful allegations which allow an inference that he is currently in
imminent danger of serious physical harm.
IT IS ORDERED:
1)

Plaintiff’s petition to proceed in forma pauperis is revoked

(3) because Plaintiff has accumulated three strikes under 28 U.S.C.
§ 1915(g) and no plausible inference arises that he is under
imminent danger of serious physical harm.
2)

The 7/25/16 text order assessing an initial partial filing

fee is vacated.

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3)

This case is dismissed without prejudice to, by

September 30, 2016, filing a motion to reopen with the $400 filing
fee or filing a motion to reconsider if Plaintiff can make truthful
allegations which allow an inference that he is currently in
imminent danger of serious physical harm.
4)

Plaintiff’s pending motions are denied without prejudice

to renewing if the case is reopened.
ENTERED:

August 8, 2016

FOR THE COURT:
s/Sue E. Myerscough
SUE E. MYERSCOUGH
UNITED STATES DISTRICT JUDGE

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