Wilkins v. Cook County of Illinois et al

Filing 45

MEMORANDUM Opinion and Order: Defendants' motion to dismiss 34 is denied. Signed by the Honorable Thomas M. Durkin on 2/18/2016:Mailed notice(srn, )

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
JOSEPH WILKINS,
Plaintiff,
v.

No. 15 C 6225

COOK COUNTY OF ILLINOIS; GARY
KANIUK; SHERIFF THOMAS DART; DR.
USHA KARTAN; DR. ANDREA WARD; JOHN
HALLINAN; JESSICA K. GOLDBACH; PAULA
THIGPEN; JOEY PAUL; GINA CAPUTO; DR.
JENEA MCNEAL; JOHN DOE (the Cook
County Department of Corrections
Healthcare Unit Administrator); JOHN
DOE (Cook County Department of
Corrections Personnel); JOHN DOE (the
Cermak Health Services of Cook County
Director); JOHN DOE (Cermak
Personnel); JOHN DOE (Cook County
Health and Hospital Systems),

Judge Thomas M. Durkin

Defendants.
ORDER
Defendants contend that Joseph Wilkins has three strikes against him, and
on that basis move the Court to dismiss his case or require him to pay the filing fee
for this case before being permitted to proceed. See R. 34. Under 28 U.S.C. §
1915(g), “if [a] 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,” he must prepay all filing fees to future

civil litigation, “unless the prisoner is in imminent danger of serious physical
injury.”
On August 17, 2015, the Court found that Wilkins had three strikes—cases
11cv50180, 11cv50267, and 13cv377—but that Wilkins sufficiently alleged that he
was in imminent danger of serious physical injury, such that the Court did not
require him to prepay the filing fee. R. 8 at 2. The Court based this finding on
Wilkins’s allegations that he was being deprived of medication to treat his
“Skitzoaffective [sic] disorder . . . . leading to suicidal thoughts, anxiety attacks, and
voices that incite him to violence.” Id. Then on September 3, 2015, the Court
amended its order to reflect that Wilkins only had two strikes because he was not
incarcerated when he filed case 13cv377. See R. 11.
Defendants have identified three additional cases Wilkins has filed which
they contend should count as strikes: 11cv4003 (C.D. Ill.); 11cv50281 (N.D. Ill.); and
11cv4055 (C.D. Ill.). Since the Court has already found that Wilkins has two strikes,
if any one of the three additional cases Defendants have identified is a strike, then
Wilkins has struck out.
In case 11cv4003, Wilkins alleged that he was not receiving adequate
medical treatment for a number of conditions. Judge Darrow granted Defendants’
motion for summary judgment on March 1, 2013.
The dismissal in case 11cv4003 is not a strike because it was decided on the
merits. Defendants argue that it should be a strike because Judge Darrow denied
Wilkins’s IFP on appeal finding that the appeal was not filed in good faith.

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Defendants argue further that this is the equivalent of a frivolous filing. But Judge
Darrow’s denial of the IFP did not constitute a dismissal of the appeal itself, and in
fact the Seventh Circuit affirmed Judge Darrow’s ruling on the merits. Under 28
U.S.C. 1915(g), a prisoner only incurs a strike if an “action or appeal” is “dismissed
on the grounds that it is frivolous, malicious, or fails to state a claim upon which
relief may be granted.” (emphasis added). Even if Judge Darrow’s holding that
Wilkins’s appeal was not filed in “good faith” is the equivalent of holding that the
appeal was “frivolous,” Judge Darrow did not have the power to dismiss the appeal.
Thus, Judge Darrow’s holding that Wilkins’s appeal was not filed in good faith does
not constitute a strike.
In case 11cv50281, Wilkins alleged that at Dixon Correctional Center he was
“fed a predominantly soy-based diet that continued to cause him to experience
various medical issues.” On October 4, 2011, Judge Reinhard dismissed the
complaint without prejudice because it contained “misjoined claims and defendants.
. . . [and] [u]nrelated claims involving unrelated defendants must be brought in
separate suits.” Judge Reinhard instructed Wilkins to “amend his complaint raising
only his claims as to [the] Dixon Correctional Center.” Wilkins never filed an
amended complaint, so on December 21, 2011, Judge Reinhard dismissed Wilkins’s
case “for failure to prosecute and noncompliance with [a] court order.”
The dismissal in case 11cv50281 is not a strike because Judge Reinhard
ultimately dismissed the case for failure to prosecute, which is not one of the
enumerated grounds under 28 U.S.C. § 1915(g). Defendants argue that a number of

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courts have found that claims based on provision of a predominantly soy-based diet
cannot withstand scrutiny under Rule 12(b)(6), and that “when the opportunity to
correct pleadings has been afforded and there has been no modification within a
reasonable time, dismissal under Rule 12(b)(6) [is] the proper course.” R. 43 at 7
(citing Paul v. Marberry, 658 F.3d 702, 705 (7th Cir. 2011)). It is true that the
Seventh Circuit has held that when a “plaintiff is told to amend his unintelligible
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, 658 F.3d at 705. But in that same
opinion the Seventh Circuit also held that if a district court does not exercise its
authority to dismiss a case based on the complaint’s failure to state a claim after the
plaintiff fails to amend a deficient complaint, but rather dismisses the case for
failure to prosecute, “the plaintiff [is] entitled to take the previous dismissal[] at
face value, and since [it] was [not] based on any of the grounds specified in section
1915(g), to infer that he was not incurring strikes by repeating dismissals.” Id. at
706. The Seventh Circuit emphasized that the “statute is explicit . . . that
classifying a dismissal as a strike depends on the grounds given for it; since most
prisoners litigate their civil claims pro se, they should not be required to speculate
on the grounds the judge could or even should have based the dismissal on.” Id.
Therefore, since Judge Reinhard dismissed the case for failure to prosecute, which
is not one of the enumerated grounds in section 1915(g), the dismissal in case
11cv50281 does not constitute a strike.

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In case 11cv4055, Wilkins alleged that he was falsely arrested and that his
First Amendment rights had been violated. On March 9, 2011, Judge Darrow held
that Wilkins’s complaint was “so sketchy that [it did] not provide the type of notice .
. . . [required by] Rule 8.” Judge Darrow dismissed the complaint without prejudice
so that Wilkins could file an amended complaint. Wilkins never filed an amended
complaint, so on April 23, 2012, Judge Darrow dismissed the case “without
prejudice for failure to prosecute with due diligence and failure to follow a court
order.” As with case 11cv50281, the Seventh Circuit’s reasoning in Paul v. Marberry
applies to case 11cv4055 and its dismissal is not a strike.
Defendants also argue that the Court should hold an evidentiary hearing to
determine whether Wilkins is in “imminent danger of serious physical injury.” But
since that finding is only necessary to save Wilkins from prepaying the filing fee if
he has struck out, and the Court has determined that he has not struck out, the
Court does not need to reach this issue.
For the foregoing reasons, Defendants’ motion, R. 34, is denied.
ENTERED
______________________________
Honorable Thomas M. Durkin
United States District Judge
Dated: February 18, 2016

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