Widmer v. Butler et al

Filing 5

ORDER denying 2 MOTION for Leave to Proceed in forma pauperis filed by Michael Widmer. 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 without prejudice. (Action due by 9/2/2014). Signed by Judge Nancy J. Rosenstengel on 8/11/2014. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
MICHAEL WIDMER, # B-30985,
Plaintiff,
vs.
DONELLA KIMBERLY BUTLER,
M. HANKS, ROGER PELKER,
OFFICER LINDENBERG,
SWISHER, and BERNER,
Defendants.

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Case No. 14-cv-874-NJR

MEMORANDUM AND ORDER
ROSENSTENGEL, 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 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 $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

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 Judicial Conference Schedule of Fees
- District Court Miscellaneous Fee Schedule, 28 U.S.C. § 1914, No. 14.
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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). If IFP status is granted, a
prisoner is assessed an initial partial filing fee according to the formula in 28 U.S.C.
§ 1915(b)(1)(A)-(B). Thereafter, 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). This monthly payment must be made 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,
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.
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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).
Plaintiff is a frequent litigator in this Court, and he acknowledges that he has
accumulated three “strikes” under the provisions of 28 U.S.C. §1915(g):

Widmer v. Slover,

Case No. 99-cv-721-GPM (S.D. Ill., dismissed as frivolous on December 7, 1999); Widmer v.
Lawless, Case No. 13-cv-1245-MJR (S.D. Ill., dismissed as frivolous on March 3, 2014); and
Widmer v. Bramlet, Case No. 14-cv-88-MJR (S.D. Ill., dismissed for failure to state a claim upon
which relief may be granted on March 26, 2014). Accordingly, 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
“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 alleges that he is under imminent danger of serious physical injury
because after he voluntarily declared a hunger strike on August 2, 2014, several of the
Defendants have refused to follow prison rules that require them to document the hunger strike
so as to alert medical staff to monitor Plaintiff’s health (Doc. 1, pp. 1, 5-9). Further, when
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Plaintiff was moved to a different cell on August 7, 2014, three Defendants refused to summon
any medical or mental health staff when Plaintiff said he was in a “crisis situation” 2 (Doc. 1, pp.
7-8). Later that day, Plaintiff suffered “extreme dizziness and a migraine headache for several
hours” and again, was not seen by any medical staff (Doc. 1, p. 8). He does not describe any
other imminent danger to his physical health, other than his concern that his life may be at risk
from his continuation of the hunger strike if he is not provided with the usual medical
monitoring.
While Plaintiff has the right, up to a point, to engage in a hunger strike, see Freeman v.
Berge, 441 F.3d 543, 546-47 (7th Cir. 2006) (prison officials may force-feed an inmate to
prevent his suicide), he may not escape the three strikes provision of the PLRA by inflicting
“imminent danger” on himself. This Court has previously observed that a prisoner cannot
“create the ‘imminent danger’ required by § 1915(g) by commencing a hunger strike.” Taylor v.
Walker, Case No. 07-cv-706-MJR, 2007 WL 4365718 (S.D. Ill. Dec. 11, 2007) (citing Ball v.
Allen, Case No. 06-cv-0496, 2007 WL 484547 (S.D. Ala. Feb. 8, 2007); Muhammed v.
McDonough, Case No. 06-cv-527, 2006 WL 1640128 (M.D. Fla. June 9, 2006); Wallace v.
Cockrell, Case No. 03-mc-98, 2003 WL 22961212 (N.D. Tex. Oct. 27, 2003)).
At the time Plaintiff filed this case on August 8, 2014, he had been on his hunger strike
for approximately seven days.

Aside from his temporary dizziness and headache on one

occasion, Plaintiff has not described any physical ailments or symptoms, serious or otherwise, as
a result of his abstention from food. Further, he states in the complaint that he personally
reported his hunger strike to a nurse, and Defendant Mezo took him to see a prison doctor after
he wrote to another official to declare his hunger strike (Doc. 1, p. 6). Plaintiff has submitted
two emergency grievances and three letters to the warden (Defendant Butler) over this matter
2

Plaintiff does not elaborate further as to the nature of that “crisis.”
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(Doc. 1, p. 4). His ability to communicate his needs relative to the hunger strike appears to be
unhindered by the defendant correctional officers’ refusal to follow the documentation protocol.
The Court therefore concludes that Plaintiff is not facing imminent danger of serious physical
injury as a result of the actions of any Defendant – any danger he might face would be a direct
consequence of his continued decision to refuse food. The Court will not condone this type of
manipulation.
Plaintiff’s allegations do not demonstrate that he was under imminent danger of serious
physical injury at the time he filed this action. He thus does not escape the “three-strikes” rule of
§ 1915(g), and 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 twentyone (21) days of the date of entry of this Order (on or before September 2, 2014). If Plaintiff
fails to comply with this Order in the time allotted by the Court, this case will be dismissed
without prejudice. 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 of Court and each opposing party informed of any change in his address; the
Court will not independently investigate his whereabouts. This shall be done in writing and not
later than seven 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

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dismissal of this action for want of prosecution.
IT IS SO ORDERED.
DATED: August 11, 2014
Digitally signed by Nancy J
Rosenstengel
Date: 2014.08.11 15:28:54
-05'00'

___________________________
NANCY J. ROSENSTENGEL
United States District Judge

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