Harden v. Godinez

Filing 7

ORDER denying 2 MOTION for Leave to Proceed in forma pauperis filed by Anthony Harden. 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 12/5/2013). Signed by Judge J. Phil Gilbert on 11/14/2013. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
ANTHONY HARDEN, # N-90639,
Plaintiff,
vs.
SALVADOR GODINEZ,
Defendant.

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Case No. 13-cv-1091-JPG

MEMORANDUM AND ORDER
GILBERT, District Judge:
Plaintiff, currently incarcerated 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. 2). Plaintiff seeks leave to proceed IFP in this case without
prepayment of the Court’s usual $400.00 filing fee in a civil case.1 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

1

A litigant who is granted IFP status must pay a filing fee of only $350.00, as he is not assessed the
$50.00 administrative fee for filing an action in a district court. See Judical Conference Schedule of Fees
- District Court Miscellaneous Fee Schedule, 28 U.S.C. § 1914, No. 14.
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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
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,

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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 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 as being frivolous, or for failure to state
a claim upon which relief may be granted: Harden, et al., v. Washington, et al., Case No. 98-cv391-PER (S.D. Ill., dismissed November 9, 1998); Harden v. Welborn, et al., Case No. 00-cv126-WDS (S.D. Ill., dismissed June 1, 2000); and Harden v. Cauthen, et al., Case No. 01-cv312-MJR (S.D. Ill., dismissed Feb. 6, 2004). 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)).
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
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“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 Plaintiff’s motion for leave to proceed IFP,
are completely devoid of allegations that might lead the Court to conclude that Plaintiff is under
imminent danger of serious physical injury. Plaintiff claims that he was sentenced to a term of
six years in prison, to be followed by three years of parole/mandatory supervised release
(“MSR”). He served the required time after application of good conduct credits, was released on
MSR, but was then returned to the custody of the Illinois Department of Corrections (“IDOC”)
after a parole violation (Doc. 1, p. 7). He now claims that IDOC Director Defendant Godinez
has improperly calculated his release date so as to require him to serve 30 more days in prison
than Plaintiff believes he should have to serve. Plaintiff filed a habeas action in state court
seeking his release, but that court has not yet issued any order. In the instant action, he also
seeks immediate release, as well as money damages for each day of excessive confinement.
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 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 filing fee of $400.00 for this action within twenty-one (21) days of the date of entry of
this Order (on or before December 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). Plaintiff shall note that the Court has not yet conducted its preliminary review of
his complaint pursuant to 28 U.S.C. § 1915A; some or all of his claims may be subject to

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dismissal on the merits.
Litigation History
In his complaint, Plaintiff answered “No” to the question, “Have you begun any other
lawsuits in state or federal court relating to your imprisonment?” (Doc. 1, p. 3). However, this
statement is untrue – three prior lawsuits filed by Plaintiff while he was a prisoner were
dismissed under § 1915A, earning him three “strikes.” In addition, examination of the Public
Access to Court Electronic Records (“PACER”) website (www.pacer.gov) shows that he has
brought four additional civil cases while he was a prisoner. It appears that Plaintiff may have
filed these other cases while he was serving sentences for previous convictions, and was then
released after completing those sentences. He is now serving time on charges that were filed in
2008. Nonetheless, any prior lawsuits filed during a prisoner’s current or prior incarceration
must be disclosed so that the Court may comply with the three-strike restrictions in 28 U.S.C.
§ 1915(g).
Where a party fails to provide accurate litigation history, the Court may appropriately
dismiss the action for providing fraudulent information to the Court. 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). Under the
circumstances of this case, the Court concludes that dismissal is not required at this time.
However, Plaintiff is WARNED that if he files any future lawsuit while he is incarcerated, and
fails to disclose his three-strike status in his complaint, his case shall be subject to immediate
dismissal.
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

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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: November 14, 2013
s/ J. Phil Gilbert
United States District Judge

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