Norris v. Joliet Police Officer et al

Filing 173

MEMORANDUM Opinion and Order Signed by the Honorable Young B. Kim on 1/9/2017. (ma,)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
JOHN V. NORRIS,
Plaintiff,
v.
CITY OF JOLIET, et al.,
Defendants.

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No. 14 CV 2625
Magistrate Judge Young B. Kim

January 9, 2017

MEMORANDUM OPINION and ORDER
Before the court is Plaintiff John Norris’s November 14, 2016 application for
leave to proceed on appeal in forma pauperis (“IFP”). (R. 161.) His application is
denied for the following reasons:
Background
On September 7, 2016, Norris appealed this court’s August 15, 2016 entry of
judgment against him, (R. 131), as well as this court’s denial of his first motion to
reconsider the entry of judgment on August 23, 2016, (R. 134; R. 138). On October
17, 2016, Norris filed a motion for leave to appeal IFP with the Seventh Circuit, and
the Seventh Circuit transferred Norris’s motion to this court. (R. 153; see also
R. 155; R. 156; R. 158.) This court initially denied Norris’s IFP motion without
prejudice on October 24, 2016, instructing him to submit a properly completed and
certified application. (R. 155.) Then on October 31, 2016, the court received notice
that Norris was no longer in custody at Will County Adult Detention Facility
(“WCADF”) and informed him that to proceed IFP on appeal, he should complete

and submit an IFP form with information about his current financial and
employment situation. (R. 160.)
Norris submitted his IFP form on November 14, 2016, and upon review, the
court noted that Norris reported under penalty of perjury that he received no
income from any source whatsoever in the past 12 months. (See R. 161; R. 165.)
However, the court observed that in previous submissions to the court, Norris
indicated that he had in fact received funds within the past year through the
WCADF Trust Fund Department, rendering the declaration in his application
inaccurate.

(R. 165.)

The court gave Norris an opportunity to explain the

discrepancy, and he filed a response on December 5, 2016.

(R. 166.)

In his

response, Norris states that his mistake was inadvertent because he “did not think
that his old inmate trust fund account activity had any materiality after he had
been released” because “his financial situation changed.”

(Id. ¶ 3.)

He also

explained that he received about $50 per month from his family while in custody,
and since being released, has been living with and caring for his elderly mother.
(Id. ¶ 7.) He asserts that he did not intend to deceive the court. (See id. ¶¶ 8-11.)
Analysis
Ordinarily, a federal litigant who cannot afford to pay court fees may proceed
IFP, which means that he may commence a civil action or appeal a civil judgment
without prepaying fees or paying certain expenses. Coleman v. Tollefson, 135 S. Ct.

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1759, 1761 (2015) (citing 28 U.S.C. § 1915). However, an inmate or detainee1 is
precluded from bringing a civil action or appealing a judgment in a civil action IFP
if at least three of the inmate’s or detainee’s prior lawsuits have been dismissed as
frivolous or malicious, or for failing to state a claim on which relief may be granted.
28 U.S.C. § 1915(g).2 The prisoner’s entire action or appeal must be dismissed on an
enumerated ground in order for the dismissal to count as one of the three “strikes.”
Turley v. Gaetz, 625 F.3d 1005, 1008-09 (7th Cir. 2010).
Norris has previously filed a number of lawsuits in this district, at least three
of which were dismissed on one of the grounds enumerated in Section 1915(g). In
2008, he filed a civil rights suit against a former Will County public defender.
Norris v. Jones, No. 08 CV 847 (N.D. Ill. Feb. 8, 2008) (“Jones Action”). The court
dismissed the Jones Action for failure to state a claim and for lack of federal subject
matter jurisdiction, explicitly noting in its order that the dismissal would count as
one of Norris’s “three allotted dismissals under 28 U.S.C. § 1915(g).”

Id., Dkt.

No. 15 (June 19, 2008) (Guzman, J.). Norris did not appeal the dismissal.
Then in 2011, Norris brought a civil rights suit against WCADF and several
other defendants. Norris v. Will Cty. Adult Det. Facility, et al., No. 11 CV 1291
(N.D. Ill. Feb. 23, 2011). The court in that case also dismissed Norris’s complaint
for failure to state a claim, and again expressly informed Norris that the dismissal

At the time Norris filed his complaint in this matter on April 10, 2014, he was a
detainee at WCADF. (R. 1 at 2.)
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An exception exists when a prisoner is in danger of serious injury, but Norris has
made no such contention here. See 28 U.S.C. § 1915(g).

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would count as another strike under Section 1915(g). Id., Dkt. No. 5 (Feb. 28, 2011)
(Kendall, J.).

Norris appealed the dismissal, but his appeal was dismissed for

failure to pay the required docketing fees. Id., Dkt. No. 19 (July 21, 2011).
In 2014 Norris sued Walgreens and others for alleged civil rights violations.
Norris v. Walgreens, et al., No. 14 CV 3207 (N.D. Ill. April 30, 2014) (“Walgreens
Action”). After Norris failed to appear at a status hearing in June 2015, the court
dismissed the Walgreens Action for want of prosecution and, in the alternative,
granted the defendants’ pending motions to dismiss. Id., Dkt. Nos. 42 & 43 (June
17, 2015) (Feinerman, J.). While the court there did not explicitly state that the
dismissal counted as a strike under Section 1915(g), it entered judgment on the
basis of defendants’ motions to dismiss for failure to state a claim. Id., Dkt. No. 43
(June 17, 2015); see Boles v. Matthews, No. 97-5874, 1999 WL 183472, at *2 (6th
Cir. March 15, 1999) (finding that while dismissal for want of prosecution is not a
strike, the district court’s alternative finding that the complaint failed to state a
claim was correct, constituting a strike). Norris did not appeal the judgment.
In 2015, Norris sued WCADF again along with Will County and other
defendants, again alleging civil rights violations. Norris v. Will Cty., et al., No. 15
CV 8973 (N.D. Ill. Oct. 8, 2015). After the case was initially dismissed for failure to
comply with court orders, Norris moved to reinstate the case. Id., Dkt. Nos. 7 (Dec.
9, 2015) & 14 (March 24, 2016). The court denied his request, but gave Norris an
opportunity to “submit an amended complaint that states a valid claim,” provide the
court with an updated IFP application, and make an initial partial payment of the

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filing fee for that case. Id., Dkt. No. 14 (March 24, 2016) (Kendall, J.). Norris failed
to do so by the court’s appointed deadline, and brought no appeal of the dismissal.
As was the case with the Walgreens Action, the court did not expressly state that
the dismissal counted as a strike. But according to the Seventh Circuit, when a
plaintiff “is told to amend his . . . complaint and fails to do so, the proper ground of
dismissal is not want of prosecution but failure to state a claim, one of the grounds
in section 1915(g) for calling a strike against a prisoner plaintiff.” Paul v. Marberry,
658 F.3d 702, 705 (7th Cir. 2011). Therefore, this dismissal was also a strike under
Section 1915(g).
At any rate, Norris recently accumulated another strike that was explicitly
labeled as such. In Norris v. Jewel-Osco, et al., No. 16 CV 8819 (N.D. Ill. Sept. 9,
2016) (“Jewel Action”), Norris’s civil rights suit was dismissed with prejudice on
November 8, 2016, for failure to state a claim. Id., Dkt. No. 18 (Nov. 8, 2016)
(Durkin, J.). The court in the Jewel Action stated in its order that the dismissal
counted as a strike under Section 1915(g) and admonished Norris that he must
“alert a federal court that he has been assessed three ‘strikes’ under
[Section] 1915(g) when filing a new suit.”3 Id.

Norris filed a motion to alter or amend the judgment in the Jewel Action, but the
court denied the motion as it relates to the federal claims on December 1, 2016, and
the case remains dismissed with prejudice as to those claims. See Norris v. JewelOsco, et al., No. 16 CV 8819, Dkt. No. 24 (Dec. 1, 2016). Although Norris can appeal
the entry of judgment, it still counts as a strike under Section 1915(g) until and
unless the Seventh Circuit finds the dismissal improper. See Coleman, 135 S. Ct. at
1761.

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Yet a week after Norris accrued his third explicit strike, notwithstanding the
two additional dismissals (that this court is aware of), which likely bring his total
strike-count to five, Norris filed the current IFP application without alerting this
court to his status as a Section 1915(g) litigant. (R. 161.) The Seventh Circuit has
warned in no uncertain terms that if litigants with at least three strikes seek
permission to proceed IFP, doing so will lead to immediate termination of their suit
with the filing fee remaining due. See Sloan v. Lesza, 181 F.3d 857, 859 (7th Cir.
1999). Granted, Norris filed his appeal in this case on September 7, 2016, before he
was formally notified of his three-strike status. (R. 138.) Furthermore, Norris was
warned by the court in the Jewel Action to alert the court when filing a new suit,
not when filing an appeal. However, having now accumulated at least three strikes
before his current application to proceed IFP on appeal, the court must deny his
application.
It is worth noting that even looking beyond the requirements of Section
1915(g), the inaccuracies in Norris’s IFP application—inadvertent or otherwise—
indicate a disregard for the penalty of perjury and a certain nonchalance towards
the privilege of proceeding IFP. See Lofton v. SP Plus Corp., 578 Fed. Appx. 603,
604 (7th Cir. 2014) (“Proceeding in forma pauperis is a privilege, and courts depend
on the plaintiff’s honesty in assessing [his] ability to pay.”).

While the court

acknowledges that Norris is a lay person who has brought this suit pro se, his
extensive litigation history shows that Norris is an experienced litigant who has
been admonished on numerous occasions to heed courts’ orders, often to no avail.

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See, e.g., Norris v. Jewel-Osco, No. 16 CV 8819 (N.D. Ill. Sept. 9, 2016) (Durkin, J.);
Norris v. Wal-Mart, No. 15 CV 8971 (N.D. Ill. Oct. 8, 2015) (Alonso, J.); Norris v.
Will Cty. Police Officer Bartunek, No. 15 CV 7306 (N.D. Ill. Aug. 19, 2015) (Gilbert,
J.); Norris v. Walgreens, No. 14 CV 3207 (N.D. Ill. June 17, 2015) (Feinerman, J.);
Norris v. Baikie, No. 14 CV 1652 (N.D. Ill. March 7, 2014) (Dow, J.). In fact, on at
least one prior occasion he made errors in his IFP application similar to those he
made here. See, e.g., Norris v. Will County, et al., No. 15 CV 8973, Dkt. Nos. 6 (N.D.
Ill. Nov. 2, 2015) & 14 (March 24, 2016) (Kendall, J.) (dismissing case after Norris
failed to submit a complete and updated IFP application accurately reflecting his
financial and employment status); Norris v. Jones, No. 08 CV 847, Dkt. No. 12 (N.D.
Ill. May 5, 2008) (Guzman, J.) (denying IFP application because Norris indicated he
received no income from any source in the last 12 months, but court noted a
financial ledger showing “two debits in March alone”). Furthermore, even after this
court gave Norris an opportunity to explain the inconsistencies in his November 14,
2016 application, he made no mention in his response of the $1,758 in wages from
employment in March and April 2016 which he listed in his October 17, 2016 IFP
application, but omitted from his most recent application. (See R. 154 at 2; R. 161
at 1-2; R. 166.) He also declared in his application that neither he nor “anyone else
living at the same residence” owned any real estate, but then wrote in the margin
that he lives with his mother, who “does own her home and other Rental Property.”
(R. 161 at 3.) Such inconsistencies could be sufficient grounds in themselves for
denying his IFP application. Cf. Kennedy v. Huibregtse, 831 F.3d 441, 443-44 (7th

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Cir. 2016) (affirming dismissal with prejudice after litigant misrepresented assets
on IFP application); Ayoubi v. Dart, 640 Fed. Appx. 524, 528-29 (7th Cir. 2016)
(approving dismissal as a sanction when a litigant has lied to receive the benefit of
proceeding IFP, observing that fines would be an ineffective sanction against an
indigent plaintiff). However, because Norris’s application must be denied at any
rate under Section 1915(g), and having already dismissed his case with prejudice
because of his failure to comply with the court’s previous orders, (R. 131), the court
makes no finding at this time regarding whether Norris’s omissions were
intentional or inadvertent.
Conclusion
For the foregoing reasons, Norris’s application for leave to proceed in forma
pauperis on appeal is denied.
ENTER:

____________________________________
Young B. Kim
United States Magistrate Judge

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