Lewis v. Funk et al

Filing 5

ORDER denying 2 MOTION for Leave to Proceed in forma pauperis filed by James D Lewis. IT IS FURTHER ORDERED that Plaintiff shall pay the full filing fee of $400.00 for this action within thirty-five (35) 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 8/5/2013). Signed by Judge Michael J. Reagan on 7/1/2013. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
JAMES D. LEWIS, # B-52327,

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Plaintiff,
vs.
SANDRA FUNK, K. WALLER,
J. MILEUR, UNKNOWN PARTY 1,
C. COLEMAN, UNKNOWN PARTY 2,
and BATEY,
Defendants.

Case No. 13-cv-546-MJR

MEMORANDUM AND ORDER
REAGAN, District Judge:
Plaintiff James D. Lewis, an inmate in the Pontiac Correctional Center
(“Pontiac”), brings this this pro se civil rights action pursuant to 42 U.S.C. § 1983. His claims
arose during his transfer from Menard Correctional Center (“Menard”) to Pontiac on February
22, 2012. This case is now before the Court for consideration of Plaintiff’s motion for leave to
proceed in forma pauperis (“IFP”) (Doc. 2).
Plaintiff seeks leave to proceed IFP in this case without prepayment of the Court’s
usual $350.001 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
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
1

As of May 1, 2013, the Judicial Conference of the United States added a new $50.00 administrative fee
to all civil actions filed on or after that date. This fee does not apply to persons granted IFP status, thus
the filing fee remains $350.00 when a motion to proceed IFP is approved. However, if IFP status is
denied, the plaintiff will be assessed the full $400.00 filing fee.
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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
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

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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 the Northern District of Illinois 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: Lewis v. Dart, Civil No. 10-4247
(N.D. Ill. July 22, 2010); Lewis v. Alvarez, et al, Civil No. 10-4540 (N.D. Ill. July 29, 2010);
Lewis v. State of Illinois, Civil No. 12-1023 (N.D. Ill. June 27, 2012) (Plaintiff was advised by
the court that this strike was his third). 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.
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)).
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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)).
In this case, Plaintiff’s complaint, as well as his motion for leave to proceed IFP,
are devoid of allegations that might lead the Court to conclude that Plaintiff is under imminent
danger of serious physical injury. Plaintiff alleges that when he was put on the transfer bus on
February 22, 2012, he requested to be secured in a seat belt because he has a seizure disorder
(Doc. 1, p. 4). Plaintiff had been injured during an earlier transfer bus trip when he had a seizure
and fell on his handcuffs and shackles. Defendant Waller laughed and denied Plaintiff’s request.
As he feared, Plaintiff suffered a seizure during the bus ride. He hurt his back and neck, and
urinated on himself. He was denied permission to see a nurse when the bus arrived at Logan
Correctional Center. Upon arriving at Pontiac, he was given no immediate medical attention, but
was told to put in a request for sick call. He did so, and was seen by the doctor on February 25,
2012. Plaintiff’s only allegation regarding current problems is that he has “been in a lot of pain”
(Doc. 1, p. 5). He adds that inmates are discriminated against by the failure to use seat belts on
the transfer buses, and this creates a health and safety hazard.
The Court concludes that Plaintiff has not shown that he is under imminent
danger of 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. 2) is DENIED.
IT IS FURTHER ORDERED that Plaintiff shall pay the full filing fee of
$400.00 for this action within thirty-five (35) days of the date of entry of this Order (on or

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before August 5, 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). Further,
if the fee is not paid in full, an order shall be entered directing payment of the filing fee pursuant
to 28 U.S.C. § 1915(b). See Newlin v. Helman, 123 F.3d 429, 438 (7th Cir. 1997).
Finally, Plaintiff is 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: July 1, 2013

s/ MICHAEL J. REAGAN_
United States District Judge

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