Wallace et al v Godinez et al

Filing 21

ORDER DISMISSING CASE without prejudice, based on Plaintiff Wallace's failure to comply with an Order of this Court. This dismissal shall NOT count as another strike under 28 U.S.C. § 1915(g). Signed by Judge Staci M. Yandle on 5/20/2015. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
MAURICE WALLACE, et al.,
Plaintiffs,
vs.
S. A. GODINEZ, et al.,
Defendants.

)
)
)
)
)
)
)
)
)

Case No. 14-cv-1394-SMY

MEMORANDUM AND ORDER
YANDLE, District Judge:
The time has come to dismiss this lawsuit. Plaintiff Maurice Wallace commenced this
action five months ago on December 19, 2014. He did so by filing a complaint (Doc. 1) and a
motion for leave to proceed in forma pauperis (“IFP motion”) (Doc. 2) that both refer to
additional plaintiffs (“non-lead plaintiffs”). 1 These initial pleadings presented several problems.
From the beginning, it was not apparent that the eight non-lead plaintiffs actually
intended to pursue their claims in this action. They did not sign the complaint or any other
pleadings. They did not file IFP motions or tender payment of the filing fee for this action.
They also failed to provide identifying information for themselves, such as a prisoner
identification number, an address, or the name of the facility where they were housed. By all
indications, the non-lead plaintiffs were involved in this action in name only.
Time and again, the Court gave Plaintiff Wallace and the non-lead plaintiffs opportunities
to signal their intentions to proceed together in this action. In doing so, the Court explained that
a non-attorney cannot file or sign papers for another litigant. See Lewis v. Lenc-Smith Mgf. Co.,

1

The non-lead plaintiffs include the following individuals: Jesse White, Jr. (who is referred to in later
pleadings as “Johnny White, Jr.”), Lamont Douglas, Matthew Echevgrria, Anthony S. White, Antonio L.
Richmond, Phillip Miller, Masceo Dickey and Christopher J. Guice (Doc. 1).
Page 1 of 7

784 F.2d 829, 831 (7th Cir. 1986); FED. R. CIV. P. 11. And a prisoner bringing a pro se action
cannot represent a class of plaintiffs. See Oxendine v. Williams, 509 F.2d 1405, 1407 (4th Cir.
1975). The Court set a deadline for all plaintiffs to file a signed, amended complaint and for
each non-lead plaintiff to either file a signed IFP motion or prepay the full filing fee for this
action (Docs. 4, 11, 15). Plaintiffs were warned that the case would proceed without any
plaintiff who failed to comply with the Court’s orders (Doc. 15, p. 12). Twice, this deadline was
extended (Docs. 11, 15). The final deadline expired on May 8, 2015.
To date, the Court has not received an amended complaint that is signed by anyone other
than Plaintiff Wallace. The Court has also not received an IFP motion from anyone other than
Plaintiff Wallace. No filing fees have been paid. With one exception, 2 the Court has received no
other communications from the non-lead plaintiffs. All communications with the Court—in the
form of pleadings, motions, memoranda, and letters—have come from Plaintiff Wallace.
It appears that Plaintiff Wallace is, and always has been, the only plaintiff who is actively
involved this matter.
Therefore, all non-lead plaintiffs shall be dismissed from this action without prejudice.
They are, of course, free to pursue their claims by filing a new action together or separately.
No filing fee will be assessed against the non-lead plaintiffs for this lawsuit. However, any nonlead plaintiff who files a new lawsuit will be obligated to pay a filing fee for that action.
A second, and now insurmountable, barrier to this action is the denial of
Plaintiff Wallace’s IFP motion (Doc. 2), followed by his failure to pay any portion of the

2

The only exception is a set of affidavits that Plaintiff Wallace filed twice with the Court. He filed the
first batch of fifteen affidavits along with a motion for temporary restraining order and preliminary
injunction (Doc. 7). The second batch of eleven affidavits accompanied the amended complaint
(Doc. 16). Both sets included affidavits from parties and non-parties alike. Several were not dated.
The others were signed between April 2013 and August 2014. To the extent they were legible, none
referenced the complaint or indicated that the affiant intended to proceed as a party in this action.
Page 2 of 7

$400.00 filing fee by the court-imposed deadline. Before commencing this action, he “struck
out” by filing three or more lawsuits that were dismissed as frivolous or for failure to state a
claim upon which relief may be granted. 3 See 28 U.S.C. § 1914(a). Under the circumstances,
Plaintiff Wallace could not bring a civil action or appeal a civil judgment IFP, unless he faced
“imminent danger of serious physical injury.”

28 U.S.C. § 1915(g).

IFP motion and complaint suggested no such thing.

Plaintiff Wallace’s

Accordingly, the Court denied the

IFP motion (Doc. 15).
Under normal circumstances, the denial of an IFP motion would not prevent a plaintiff
from pursuing his claims. He would simply be required to prepay the full filing fee of $400.00
before moving forward with the action. In the order denying Plaintiff Wallace’s IFP motion, the
Court imposed a payment deadline of May 8, 2015 (Doc. 15, p. 12). The Court warned Plaintiff
Wallace that “[f]ailure to pay the full filing fee by this deadline [would] result in his dismissal
from this action” (Id.). Further, the Court indicated that “[i]f he is the only remaining plaintiff,
the entire action [would] be dismissed” (Id.). Plaintiff missed the payment deadline. He did not
seek additional time to pay his filing fee. Dismissal of Plaintiff Wallace’s claims is therefore
appropriate.
The question becomes whether the dismissal should be with or without prejudice.
This brings the Court to the issue of sanctions. Plaintiff did not disclose any of his prior
“strikes” in his IFP motion or his complaint. After noting this, the Court ordered him to show
cause why sanctions should not be imposed against Plaintiff Wallace for attempting to defraud

3

See Wallace v. Hallam, et al., Case No. 09-cv-00418-DRH (S.D. Ill. Feb. 23, 2010) (order dismissing
action and assessing strike for failure to state a claim upon which relief may be granted); Wallace v.
Powers, et al., Case No. 09-cv-00224-DRH (S.D. Ill. Nov. 19, 2009) (same); Westefer v. Snyder, et al.,
Case No. 00-cv-162-GPM (S.D. Ill. Feb. 25, 2011) (order denying Plaintiff’s motion to intervene and
assessing strike for filing frivolous action). See also Wallace v. Taylor, Case No. 11-cv-0332-MJR
(S.D. Ill. May 17, 2012) (order revoking IFP based on accumulation of three strikes).
Page 3 of 7

the Court (Doc. 15, pp. 5-6). The Court explained that a plaintiff’s failure to disclose his
litigation history, particularly when he seeks to proceed IFP, provides grounds for immediate
dismissal of the suit (Doc. 15, p. 6). See 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 with prejudice appropriate where Court-issued
complaint form clearly warned Plaintiff that failure to provide litigation history would result in
dismissal). In light of controlling authority on this issue, Plaintiff Wallace was warned that his
failure to show cause would result in his dismissal from this action; further, the dismissal of this
action would be with prejudice if Plaintiff Wallace was the only remaining plaintiff (Doc. 15,
p. 12). Plaintiff Wallace was required to respond to the show cause order by May 8, 2015
(Doc. 15, p. 12).
He filed a timely response (Doc. 17). In it, Plaintiff Wallace requested reconsideration of
the order denying his IFP motion (Doc. 17, pp. 1-2). He also responded to the show cause order
(Doc. 17, p. 3).
Plaintiff’s request for reconsideration of the order denying his IFP motion shall be
denied. Plaintiff did not base his request for reconsideration on any error of fact or law in the
order denying his IFP motion. He did not mention Federal Rule of Civil Procedure 59 or 60.
Instead, he freely admitted that neither his “standing complaint” nor his IFP motion presented
any particular threats of imminent danger (Doc. 17, p. 2). Upon review of its decision and the
underlying IFP motion and complaint, the Court reaches the same conclusion and deems it

Page 4 of 7

unnecessary to further scour the many voluminous motions, affidavits, and memoranda filed in
this action for allegations suggesting that Plaintiff Wallace faces imminent danger of serious
physical harm. 4 The order denying the IFP motion stands. And because Plaintiff Wallace failed
to tender payment of the $400.00 filing fee by May 8, 2015, or seek an extension of the deadline
for doing so, the Court shall dismiss his claims at this time.
Whether or not dismissal with prejudice is appropriate under the circumstances depends
on Plaintiff Wallace’s response to the order to show cause. In his response (Doc. 17, p. 3),
Plaintiff Wallace admits that he did, in fact, fail to disclose his prior strikes. He blames this
oversight on his own negligence, his lack of access to his legal materials from past cases, and his
failure to use the standard complaint form when filing this action (Doc. 17, p. 3). He points out
that he did mention several of his other cases in the complaint, but forgot to disclose the resulting
strikes that were assessed in each case. Although the Court questions how a seasoned litigator
like Plaintiff Wallace could forget to mention his prior strikes in an IFP motion, the Court will
give him the benefit of the doubt. The Court will refrain from imposing sanctions in this case.
However, Plaintiff is warned that future attempts to deceive the Court by omitting this
information will result in sanctions, as explained in more detail below in the disposition.
While dismissal of Plaintiff Wallace’s claims is still appropriate given the denial of the
IFP motion and his failure to pay the $400.00 filing fee in a timely manner, the Court will
dismiss the claims (and this case) without prejudice. This means that Plaintiff Wallace is free to
file a new complaint, in a separate action, asserting those claims he wishes to pursue further.
If he chooses to do so, Plaintiff will be required to prepay the full filing fee of $400.00 or seek
leave to proceed IFP.
4

However, the Court notes that Plaintiff’s two motions for a temporary restraining order (Docs. 7, 18)
were denied as meritless (Docs. 8, 19). Further, his voluminous pleadings, motions, affidavits, and other
papers referred to numerous unrelated claims that have little or nothing to do with his physical safety.
Page 5 of 7

Disposition
IT IS HEREBY ORDERED that the non-lead plaintiffs, including JESSE WHITE,
LAMONT DOUGLAS, MATTHEW ECHEVGRRIA, ANTHONY S. WHITE, ANTONIO
L. RICHMOND, PHILLIP MILLER, MASCEO DICKEY and CHRISTOPHER J. GUICE
are DISMISSED from this action without prejudice, based on their lack of involvement in this
matter and apparent lack of intentions to pursue their claims together in this lawsuit.
This dismissal does NOT count as a “strike” against any of the non-lead plaintiffs under
28 U.S.C. § 1915(g). Further, no filing fee is assessed against them.
IT IS ALSO ORDERED that Plaintiff’s request in Document 17 for reconsideration of
the order denying the IFP motion (Doc. 15) is hereby DENIED.
IT IS FURTHER ORDERED that this action is DISMISSED without prejudice, based
on Plaintiff Wallace’s failure to comply with an Order of this Court. FED. R. CIV. P. 41(b).
See generally Ladien v. Astrachan, 128 F.3d 1051 (7th Cir. 1997); Johnson v. Kamminga,
34 F.3d 466 (7th Cir. 1994). This dismissal shall NOT count as another “strike” under 28 U.S.C.
§ 1915(g). Plaintiff Wallace’s obligation to pay the filing fee for this action was incurred at the
time he filed the action, so the filing fee of $400.00 remains due and payable. See 28 U.S.C.
§ 1915(b)(1); Lucien v. Jockisch, 133 F.3d 464, 467 (7th Cir. 1998). To date, Plaintiff has paid
no portion of this amount. Therefore, a separate order will issue for the prison Trust Fund
Officer to deduct payments from Plaintiff’s trust fund account until the $400.00 fee is paid in
full.
IT IS FURTHER ORDERED that Plaintiff shall disclose the fact that he is “struck out”
within the meaning of 28 U.S.C. § 1915(g) in any future motion for leave to proceed in forma
pauperis that he files in this District. If he fails to disclose his litigation history in compliance

Page 6 of 7

with this order, the new case shall be subject to summary dismissal for failure to comply with an
Order of this Court. See FED. R. CIV. P. 41(b).
IT IS ORDERED that all pending motions (Docs. 5, 6, and 18) are hereby DENIED as
MOOT.
If Plaintiff wishes to appeal the dismissal of this case, he may file a notice of appeal with
this Court within thirty (30) days of the entry of judgment.

FED. R. APP. P. 4(a)(1)(A).

If Plaintiff does choose to appeal, he will be liable for the $505.00 appellate filing fee
irrespective of the outcome of the appeal. See FED. R. APP. P. 3(e); 28 U.S.C. § 1915(e)(2);
Ammons, 547 F.3d at 725-26; Sloan, 181 F.3d at 858-59; Lucien, 133 F.3d at 467.
Moreover, because Plaintiff has “struck out” and has not shown that he is in imminent danger of
serious physical injury, this Court will not grant him permission to proceed in forma pauperis on
appeal. Finally, if the appeal is found to be nonmeritorious, Plaintiff may also incur another
“strike.” A timely motion filed pursuant to Federal Rule of Civil Procedure 59(e) 5 may toll the
30-day appeal deadline. FED. R. APP. P. 4(a)(4).
The Clerk shall CLOSE THIS CASE and enter judgment accordingly.
IT IS SO ORDERED.
DATED: May 20, 2015
s/ STACI M. YANDLE
United States District Judge

5

A Rule 59(e) motion to alter or amend a judgment must be filed no later than 28 days after the entry of
the judgment. FED. R. CIV. P. 59(e).
Page 7 of 7