Montana v. Wilborn et al

Filing 9

ORDER denying 5 MOTION to Copy MOTION to Amend/Correct MOTION to Enforce MOTION Have mail opened in front of plaintiff filed by Shahid Ahmad Montana, Jr, 2 MOTION for Leave to Proceed in forma pauperis filed by Shahid Ahmad Montana, Jr, and 8 MOTION for Hearing MOTION to Compel filed by Shahid Ahmad Montana, Jr. It is further ORDERED that Plaintiff shall pay the full filing fee of $400.00 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 11/5/2013). Signed by Judge Michael J. Reagan on 10/15/2013. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
SHAHID AHMAD MONTANA, # N-83733, )
also known as REGINALD SMITH,
)
)
Plaintiff,
)
)
vs.
)
)
GEORGE WILBORN, et al.,
)
)
Defendants.
)

Case No. 13-cv-00967-MJR

MEMORANDUM AND ORDER
REAGAN, District Judge:
This matter is before the Court on a motion for leave to proceed in forma pauperis
(“IFP”) brought by Plaintiff (Doc. 2).

Plaintiff, an inmate at Pontiac Correctional Center

(“Pontiac”), seeks leave to proceed IFP in this case without prepayment of the Court’s usual
$350.00 1 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
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
1

In cases where IFP status is denied, the required fee has increased from $350.00 to $400.00.

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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. 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).
Plaintiff’s affidavit is deficient in several significant respects.

He failed to

produce a certified copy of his trust fund account statement. In addition, Plaintiff admitted
receiving income from gifts, inheritances, and other sources during the past twelve months, yet
failed to disclose the amount (Doc. 2, p. 1). Finally, Plaintiff failed to disclose his ownership
interest in real estate and his access to “sources to get funds,” both of which he disclosed in an
IFP motion that he filed on July 26, 2013, in Montana v. Bank & Ins. Co., et al., No. 13-cv-733JPG (S.D. Ill. July 23, 2013) (Doc. 6, p. 1). 2 The Court can deny Plaintiff’s application on this
basis alone.
However, Plaintiff’s IFP motion also fails on the merits. According to 28 U.S.C.
§ 1915, a prisoner may not bring a civil action or appeal a civil judgment “if the prisoner has, on
2

Court documents such of Plaintiff’s IFP motion in another case 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).

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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). Section 1915(g) requires that
this Court consider prisoner actions dismissed prior to, as well as after, the PLRA’s enactment.
See Evans v. I.D.O.C., 150 F.3d 810, 811 (7th Cir. 1998); Abdul-Wadood v. Nathan, 91 F.3d
1023 (7th Cir. 1996).
Review of documents filed in the electronic docket of this Court and 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 on
the grounds that they were frivolous, malicious, or failed to state a claim upon which relief may
be granted: Smith v. Godinez, et al., Case No. 12-cv-00837 (S.D. Ill., dismissed September 12,
2012); Smith v. Behm, et al., Case No. 12-cv-07474 (N.D. Ill., dismissed November 21, 2012);
Smith v. Bakalis, 13-cv-00390 (N.D. Ill., dismissed January 22, 2013); and Smith v. Funk, et al.,
Case No. 13-cv-00062 (S.D. Ill., dismissed February 11, 2013).

Because Plaintiff has

accumulated over three “strikes” for purposes of Section 1915(g), he may not proceed IFP in this
case unless he is under imminent danger of serious physical injury.
Plaintiff has failed to satisfy this requirement.

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

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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, 91 F.3d
1023 (7th Cir. 1996)).
Plaintiff’s IFP motion and complaint contain no suggestion that he is in imminent
danger. To the extent that either pleading focuses on a particular claim, the complaint appears to
challenge Plaintiff’s transfers between Tamms, Dixon, and Menard Correctional Centers from
2000-2004 (Doc. 1, pp. 5-6). Although Plaintiff makes a vague reference to a prisoner who may
have committed suicide during this time period, Plaintiff asserts no claims that he is personally,
presently in any sort of danger of serious physical injury. Accordingly, his motion to proceed in
forma pauperis (Doc. 2) shall be denied.
Pending Motions
Plaintiff has filed a motion for copies, to modify, to enforce discovery, and to
have mail opened in front of Plaintiff (Doc. 5), and this motion is DENIED.
Plaintiff has also filed a motion for trial/hearing and to compel discovery (Doc.
8), which is also DENIED.
Disposition
Plaintiff has not shown that he is under imminent danger of serious
physical injury so as to escape the “three-strikes” rule of Section 1915(g), thus he cannot proceed
IFP in this case. 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

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filing fee of $400.00 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. 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).
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 a dismissal of this action for want of prosecution.
IT IS SO ORDERED.
DATED: October 15, 2013
s/ MICHAEL J. REAGAN
United States District Judge

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