Burke v. Godinez et al

Filing 7

ORDER denying 3 MOTION for Leave to Proceed in forma pauperis filed by Calvin Burke. IT IS FURTHER ORDERED that Plaintiff shall pay the full filing fee of $350.00 for this action within twenty-one (21) days of the date of entry of this Order. If Plaintiff fails to comply with this Order in the time allotted by the Court, this case will be dismissed. (Action due by 5/30/2013). Signed by Judge J. Phil Gilbert on 5/9/2013. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
CALVIN BURKE, # B-60083,
Plaintiff,
vs.
SALVADOR GODINEZ,
RICK HARRINGTON,
ASSISTANT WARDEN BUTLER,
JOHN TOURVILLE,
GEORGE WILLBORN,
MICHELLE BUSCHER, MISTI PRICE,
BETSY SPILLER, JORGE L. MONTES,
ILLINOIS DEPARTMENT of
CORRECTIONS,
and UNKNOWN PARTIES,
Defendants.

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Case No. 13-cv-345-JPG

MEMORANDUM AND ORDER
GILBERT, District Judge:
Plaintiff, currently incarcerated in the medium security unit at Menard Correctional
Center (“Menard”), has brought this pro se civil rights action pursuant to 42 U.S.C. § 1983.
This matter is before the Court on a motion for leave to proceed in forma pauperis
(“IFP”) brought by Plaintiff (Doc. 3). Plaintiff has also moved for a preliminary injunction and
temporary restraining order (“TRO”). Each matter shall be addressed in turn.
Motion for Leave to Proceed IFP (Doc. 3)
Plaintiff seeks leave to proceed IFP in this case without prepayment of the Court’s usual
$350.00 filing fee in a civil case. See 28 U.S.C. § 1914(a). 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
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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 the case of 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). Upon tender of a proper affidavit and certified copy of a
trust fund account statement, a prisoner then is assessed an initial partial filing fee of twenty
percent of the greater of: (1) the average monthly deposits to the prisoner’s trust fund account;
or (2) the average monthly balance in the prisoner’s trust fund account for the six-month period
immediately preceding the filing of the prisoner’s suit. See 28 U.S.C. § 1915(b)(1)(A)-(B).
After payment of an initial partial filing fee, 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). The agency having custody of a prisoner must forward payments
from the prisoner’s trust fund account to the clerk of the district court where the prisoner’s case
is pending each time the amount in the account exceeds $10.00 until the filing fee 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).
In this case, Plaintiff has tendered an affidavit of indigence that is sufficient as to form,
but this is not the end of the matter. Pursuant to 28 U.S.C. § 1915A, a district court “shall
review, before docketing, if feasible or, in any event, as soon as practicable after docketing, a

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complaint in a civil action in which a prisoner seeks redress from a governmental entity or
officer or employee of a governmental entity.” 28 U.S.C. § 1915A(a). The statute provides
further that, “[o]n review, the court shall identify cognizable claims or dismiss the complaint, or
any portion of the complaint, if the complaint . . . is frivolous, malicious, or fails to state a claim
upon which relief may be granted[.]” 28 U.S.C. § 1915A(b)(1). Under 28 U.S.C. § 1915,
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). Court documents are, of course, public records of which the Court can take
judicial notice. See Henson v. CSC Credit Servs., 29 F.3d 280, 284 (7th Cir. 1994). Review of
documents filed in the electronic docket of this Court, and on the Public Access to Court
Electronic Records (“PACER”) website (www.pacer.gov), discloses the following actions
brought by Plaintiff while a prisoner seeking redress from officers or employees of a
governmental entity that have been dismissed pursuant to 28 U.S.C. § 1915A for failure to state a
claim upon which relief may be granted: Burke v. Snyder, et al., Case No. 03-cv-3024-HABBGC (C.D. Ill., dismissed July 20, 2004); Burke v. Montgomery Cnty. Jail, Case No. 12-cv-253
(M.D. Tenn., dismissed March 13, 2012); Burke v. Montgomery Cnty. Jail, Case No. 12-cv-293
(M.D. Tenn., dismissed March 28, 2012). 1 Because Plaintiff has three “strikes” for purposes of
§ 1915(g), he may not proceed IFP in this case unless he is under imminent danger of
serious physical injury.
Notably, Plaintiff neglected to mention any of these previously-filed actions in his

1

See Burke v. Tackett, Case No. 12-cv-374 (M.D. Tenn., filed April 11, 2012), in which Plaintiff’s
application to proceed IFP was denied, and where Plaintiff was ordered on January 8, 2013, to pay the
filing fee in full or face dismissal of that suit.
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complaint. A plaintiff’s failure to disclose his litigation history, particularly when he seeks to
proceed IFP, may be grounds for immediate dismissal of the suit. 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); see also Hoskins
v. Dart, 633 F.3d 541, 543 (7th Cir. 2011) (dismissal appropriate where Court-issued complaint
form clearly warned Plaintiff that failure to provide litigation history would result in dismissal).
At this juncture, the record does not clearly indicate that dismissal is appropriate. However,
Plaintiff is ADVISED that if he brings any future lawsuit while he is a prisoner, he must inform
the Court of his prior cases which have been dismissed pursuant to § 1915A, whether or not he
uses a Court-issued complaint form. Further, Plaintiff must still satisfy the requirements of
§ 1915(g) if he is to proceed in this action.
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)).

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In this case, Plaintiff’s first claim alleges he was denied due process by the Prisoner
Review Board, which delayed action on his case for over seven months (Doc. 1, pp. 7-13; Doc.
2, pp. 2-6). Plaintiff admits to having committed several offenses in Tennessee, beginning in
December 2011. However, Illinois officials did not revoke his parole until August 2012, when
he was returned to custody in Illinois. He is seeking damages for this delay and the resulting
additional incarceration (Doc. 1, pp. 23, 26-27). Clearly, this claim does not include any
suggestion of physical danger, imminent or otherwise.
The complaint then alleges that Plaintiff received verbal threats from two Menard
correctional officers, which have caused him to fear that he is in danger of physical harm or
death. On February 8, 2013, Plaintiff was on a work detail in the maximum security area of
Menard, which had been recently placed on lockdown. Defendant Tourville thought Plaintiff
was staring at him, so he told Plaintiff, “If you f**ing hit me I will kill you,” then insisted
Plaintiff repeat back to him, “Yes, I understand you will f**ing kill me” (Doc. 1, p. 15-16; Doc.
2, pp. 9-13; 18-19). He does not describe any further encounters with Defendant Tourville. He
filed an emergency grievance over this encounter, which was deemed not to be an emergency by
Defendant Warden Harrington (Doc. 1, p. 17).
On March 26, 2013, Defendant Willborn told Plaintiff, “Snitches get stitches” (Doc. 1, p.
14-15; Doc. 2, p. 8). Plaintiff took this as a threat of physical harm. Prior to this exchange,
Plaintiff had filed a grievance accusing Defendant Willborn of giving tobacco (which is
contraband) to inmate porters. Id. Another prisoner told Plaintiff he had heard two other
inmates talking about Plaintiff’s indirect accusation against the porters (Doc. 2, p. 8).
Finally, Plaintiff complains that as a result of other grievances he filed over his “false
imprisonment” and other prison conditions (Doc. 1, p. 19), he was given a “corrected [sentence]

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calculation sheet” on March 7, 2013, that showed his projected release date as July 22, 2013
(Doc. 1, p. 21; Doc. 2, pp. 15, 27, 29). This added almost two months to his prison time, as he
had been previously told he would be released on May 29, 2013. He concludes that this action
was taken in retaliation for his protected activity of filing grievances and acting as a “jailhouse
lawyer” (Doc. 2, pp. 23, 34). Again, this claim does not suggest that Plaintiff is in any physical
danger as a result of the alleged retaliation.
Plaintiff acknowledges that the threats by Defendant Tourville and Defendant Willborn,
and what he describes as his “false imprisonment” are “all unrelated incidents” (Doc. 1, p. 19).
However, he claims that each incident is connected because they led to the ultimate retaliation of
his sentence being recalculated to extend his imprisonment. Id.
Because Plaintiff’s pleadings do not include or acknowledge the fact that he faces the
“three-strike” bar to proceeding IFP in this action, he does not squarely address the question of
whether he is under imminent danger of serious physical injury within the meaning of § 1915(g).
In his request for injunctive relief, he asks for an order prohibiting Defendants from making any
further verbal threats against him or from carrying out threats to kill or harm him (Doc. 2, p. 33).
At the same time, he seeks to enjoin further retaliation against him for complaining about prison
conditions, as well as to prevent the disclosure of the contents of his grievances to the offending
prison staff members, and prevent any further increase in his sentence without written
justification (Doc. 2, pp. 33-34).
Taken as a whole, the Court is of the opinion that Plaintiff’s pleadings do not show that
he is facing imminent danger of serious physical injury. He does not claim that any Defendant
has ever physically harmed him or even had physical contact with him. The verbal threat from
Defendant Tourville occurred on February 8, 2013, and has not recurred. The disclosure of

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Plaintiff’s grievance against Defendant Willborn and the “snitch” comment were more recent,
but Plaintiff does not indicate that he has experienced any harm, threat of harm, or attempted
attack from any fellow inmate (or from Defendant Willborn) after this encounter. The verbal
threats from Defendants Tourville and Willborn were merely talk, unaccompanied by any other
indicia of violence directed toward Plaintiff. This type of verbal harassment will not support an
Eighth Amendment claim, nor does it indicate a threat of imminent serious physical danger.
Compare Dobbey v. Ill. Dept. of Corr., 574 F.3d 443, 445 (7th Cir. 2009) (brief display of noose
by white guard during a card game in officers’ control room, in view of African-American
plaintiff, was not a credible threat to kill or injure plaintiff), with Irving v. Dormire, 519 F.3d
442, 445, 449-50 (8th Cir. 2008) (pattern of conduct by defendant including allowing another
inmate to attack plaintiff, offering to pay other inmates to beat him, providing a weapon to an
inmate to use against plaintiff, and labeling plaintiff a “snitch,” coupled with repeated verbal
death threats, stated a claim). The threats described by Plaintiff do not come close to the pattern
of conduct in Irving. At most, they may be comparable to the incident in Dobbey, which was
found not to be a credible death threat.
Plaintiff’s pleadings indicate a greater level of concern on his part about the chilling
effect the alleged retaliation has had on his First Amendment activity, and about the process
which resulted in the revocation of his parole in the first place. It appears he is attempting to
“piggy-back” these claims, which standing alone indicate no danger to him whatsoever, onto his
claim that he is in danger of physical harm as a result of verbal threats, in order to get past the
three-strike bar. This connection is too tenuous to hold, and the allegations of physical danger do
not suffice to overcome the restrictions of § 1915(g).
The Court concludes that Plaintiff has not shown that he is under imminent danger of

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serious physical injury so as to escape the “three-strikes” rule of § 1915(g), thus he is not entitled
to proceed IFP in this action. Therefore, it is hereby ORDERED that Plaintiff’s motion for
leave to proceed IFP in this case (Doc. 3) is DENIED.
IT IS FURTHER ORDERED that Plaintiff shall pay the full filing fee of $350.00 for
this action within twenty-one (21) days of the date of entry of this Order (on or before May 30,
2013). If Plaintiff fails to comply with this Order in the time allotted by the Court, this case will
be dismissed. See FED. R. CIV. P. 41(b); Ladien v. Astrachan, 128 F.3d 1051, 1056-57 (7th Cir.
1997); Johnson v. Kamminga, 34 F.3d 466, 468 (7th Cir. 1994).
Motion for Preliminary Injunction and TRO (Doc. 2)
Because Plaintiff’s allegations, discussed above, do not indicate that he is facing
imminent danger, they likewise do not establish a need for the entry of a TRO before the
Defendants can be heard. 2 Plaintiff’s other requests for injunctive relief (those that are not
related to the verbal threats) go to the ultimate issues of whether Plaintiff has been denied his
right to due process or been subjected to unconstitutional retaliation. They do not warrant
immediate action by the Court. Moreover, in order for Plaintiff to proceed on any of his claims,
he must comply with the order herein for prepayment of his filing fee. Accordingly, Plaintiff’s
motion for injunctive relief (Doc. 2) shall be HELD IN ABEYANCE pending his prepayment
of the filing fee. If the fee is paid, the Court shall proceed to screen the complaint pursuant to 28
U.S.C. § 1915A. Plaintiff is advised that some of the claims in his complaint may not survive
this threshold merits review.
2

A TRO is an order issued without notice to the party to be enjoined that may last no more than
14 days. FED. R. CIV. P. 65(b)(2). A TRO may issue without notice only if: (A) specific facts in an
affidavit or a verified complaint clearly show that immediate and irreparable injury, loss, or damage will
result to the movant before the adverse party can be heard in opposition; and (B) the movant=s attorney
certifies in writing any efforts made to give notice and the reasons why it should not be required.
FED. R. CIV. P. 65(b)(1).
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Finally, Plaintiff is FURTHER ADVISED that he is under a continuing obligation to
keep the Clerk and each opposing party informed of any change in his address, and that the Court
will not independently investigate his whereabouts. This shall be done in writing and not later
than seven (7) days after a transfer or other change in address occurs. Failure to comply with
this order will cause a delay in the transmission of court documents, and may result in dismissal
of this action for want of prosecution.
IT IS SO ORDERED.
DATED: May 9, 2013

s/ J. PHIL GILBERT
United States District Judge

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