Allen v. Westfall et al

Filing 13

IT IS HEREBY ORDERED that Plaintiff's motion for temporary restraining order and preliminary injunction is DENIED without prejudice.IT IS ALSO ORDERED that Plaintiff's motion for leave to proceed in forma pauperis (Doc. 6) is DENIED. IT IS FURTHER ORDERED that Plaintiff shall pay the full filing fee of $400.00 for this action within thirty (30) days of the date of entry of this Order (on or before August 5, 2015). If Plaintiff fails to comply with this Order in the time allotted by the Court, this case will be dismissed.(Action due by 8/5/2015). Signed by Chief Judge Michael J. Reagan on 7/6/2015. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
RODERICK T. ALLEN,
#N84327,

)
)
)
)
)
)
)
)
)
)
)

Plaintiff,
vs.
J. ENGELAGE
and C/O REYNOLDS,
Defendants.

Case No. 15-cv-00175-MJR

MEMORANDUM AND ORDER
REAGAN, Chief District Judge:
This matter comes before the Court for consideration of Plaintiff Roderick Allen’s
motion for leave to proceed in forma pauperis (“IFP”) (Doc. 6). Plaintiff has accumulated more
than three “strikes” by filing lawsuits that were dismissed for failure to state a claim upon which
relief may be granted or for raising frivolous claims. 1 Under the circumstances, he may not
proceed IFP in a new civil action, unless he faces imminent danger of serious physical injury.
See 28 U.S.C. § 1915(g). In order to make this determination, the Court normally reviews the
IFP motion and the complaint.
The Court has been unable to do so to date. Shortly after Plaintiff filed his complaint on
February 19, 2015 (Doc. 1), he filed a motion to withdraw it on March 9, 2015 (Doc. 3).
The Court granted Plaintiff’s motion and ordered him to file an amended complaint on or before

1

Allen v. Chapman, et al., Case No. 11-cv-1130-MJR (S.D. Ill., dismissed Aug. 29, 2012);
Allen v. Godinez, et al., Case No. 12-cv-936-GPM (S.D. Ill., dismissed Oct. 18, 2012);
Allen v. Harrington, Case No. 13-cv-725-GPM (S.D. Ill., dismissed Aug. 22, 2013); and Allen v. Bower,
et al., Case No. 13-cv-931-MJR (S.D. Ill., dismissed March 17, 2014); Allen v. Chapman, Case No. 14cv-348-JPG (S.D. Ill., dismissed Jun. 24, 2014).
Page 1 of 10

April 15, 2015 (Doc. 4). Although Plaintiff filed his IFP motion on March 20, 2015, the motion
did not mention imminent danger.
Plaintiff requested three extensions of the deadline to file his amended complaint
(Docs. 5, 8, 10). The Court granted his first two requests (Docs. 7, 9), but denied the third
(Doc. 11). Under the second extended deadline, Plaintiff’s amended complaint was due on or
before June 19, 2015 (Doc. 12). The Court received the amended complaint from Menard on
June 25, 2015. Because Plaintiff’s affidavit of service indicates that he placed the pleading in the
institutional mail on June 19, 2015, the Court will accept the amended complaint as timely under
the prison mailbox rule (Doc. 12, p. 18). 2 See Taylor v. Brown, --- F.3d ---, 2014 WL 9865341,
at *6 (7th Cir. Jun. 2, 2015).
The IFP motion is now ripe for review. However, Plaintiff’s amended complaint and IFP
motion support no finding that Plaintiff faces imminent danger of serious physical injury.
Section 1915(g) therefore precludes Plaintiff from proceeding IFP in this case, and the IFP
motion shall be DENIED.
Discussion
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 civil actions, a prisoner’s affidavit of indigence must be accompanied by “a certified copy of

2

Under the prison mailbox rule, a pro se prisoner’s legal documents are considered filed on the date that
they are tendered to prison staff in accordance with reasonable prison policies, regardless of whether they
are ultimately mailed or scanned. Taylor, --- F.3d ---, 2014 WL 9865341, at *6. Plaintiff’s certificate of
service indicates that he placed the amended complaint in the institutional mail on June 19, 2015, i.e., the
court-imposed deadline (Doc. 12, p. 18). It is therefore considered timely, despite the fact that the
amended complaint was scanned and received by the Court six days after the deadline.
Page 2 of 10

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).
Plaintiff submitted an affidavit of indigence that is sufficient as to form.
Even so, Plaintiff is barred from proceeding IFP. See 28 U.S.C. § 1915(g). According to
Section 1915(g), a prisoner may not bring a civil action or appeal a civil judgment in forma
pauperis “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).
Plaintiff’s IFP motion must be denied on these grounds.
When asked whether he had “begun any other lawsuits in state or federal court relating to
[his] imprisonment,” Plaintiff disclosed ten lawsuits that he filed in this District (Doc. 1, p. 3).
He mentioned filing “several other lawsuits” without providing any details. Id. In fact, Plaintiff
has filed eighteen lawsuits and/or appeals since 2011. 3 See Bova v. U.S. Bank, N.A., 446 F.
Supp. 2d 926, 930 n. 2 (S.D. Ill. 2006) (a court may judicially notice public records available on
government websites) (collecting cases); Henson v. CSC Credit Servs., 29 F.3d 280, 284
(7th Cir. 1994).

According to the Public Access to Court Electronic Records (“PACER”)

website (www.pacer.gov), five of the twelve lawsuits that Plaintiff filed in this District resulted
in the assessment of a “strike” because the suits were dismissed as frivolous, malicious, or for
failure to state a claim. See Allen v. Chapman, et al., Case No. 11-cv-1130-MJR (S.D. Ill.,
3

Plaintiff should have disclosed all eighteen lawsuits, with the exception of any he commenced after
filing this action. Because most of the undisclosed cases represent appeals taken from actions that
Plaintiff commenced in this District (and include no “strikes”), he will not be penalized for failing to
disclose this information at this time. However, Plaintiff is cautioned against omitting this information in
the future; failure to do so may result in the imposition of sanctions.
Page 3 of 10

dismissed Aug. 29, 2012); Allen v. Godinez, et al., Case No. 12-cv-936-GPM (S.D. Ill.,
dismissed Oct. 18, 2012); Allen v. Harrington, Case No. 13-cv-725-GPM (S.D. Ill., dismissed
Aug. 22, 2013); Allen v. Bower, et al., Case No. 13-cv-931-MJR (S.D. Ill., dismissed
Mar. 17, 2014); and Allen v. Chapman, Case No. 14-cv-348-JPG (S.D. Ill., dismissed
Jun. 24, 2014). 4

Because Plaintiff has incurred more than three “strikes” for purposes of

Section 1915(g), he may not proceed IFP in this case unless his 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 Section 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)).
Plaintiff does not claim to be in imminent danger in his IFP motion (Doc. 6). Plaintiff’s
amended complaint supports no such finding (Doc. 12).

4

In it, Plaintiff alleges that two

Of the six appeals that Plaintiff filed in the Seventh Circuit Court of Appeals, none resulted in “strikes.”
Three are currently pending, and three were dismissed for failure to pay the filing fee. In two that involve
claims against prison officials who allegedly attempted to kill Plaintiff by administering a contaminated
tuberculosis skin test, the Seventh Circuit revoked Plaintiff’s IFP status after finding that “no reasonable
person would suppose that Allen’s appeal has merit.” See Allen v. Chapman, et al., Appeal No. 12-3162
(7th Cir. 2012) (Doc. 17); Allen v. Grooves, et al., Appeal No. 12-2543 (7th Cir. 2012) (Doc. 5).
Page 4 of 10

correctional officers at Menard Correctional Center (“Menard”), i.e., C/O Engelage and
C/O Reynolds, denied Plaintiff exercise opportunities and adequate nutrition.
The denial of adequate exercise opportunities can result in serious health consequences
that give rise to an Eighth Amendment claim. See, e.g., Delaney v. DeTella, 256 F.3d 679, 684
(7th Cir. 2001) (inmate denied yard access for six months suffered constitutional deprivation);
Pearson v. Ramos, 237 F.3d 881, 884-85 (7th Cir. 2001) (denial of yard privileges for more than
ninety days may be cognizable under Eighth Amendment); see also Perkins v. Kan. Dep’t of
Corr., 165 F.3d 803, 810 (10th Cir. 1999) (nine month denial of outdoor exercise states
Eighth Amendment claim). Likewise, the denial of a nutritionally adequate diet can support an
Eighth Amendment claim against those officials who are responsible for the deprivation.
See, e.g., Sanders v. Sheahan, 198 F.3d 626 (7th Cir. 1999) (nutritionally inadequate food
resulting in malnutrition supported claim); Antonelli v. Sheahan, 81 F.3d 1422, 1432
(7th Cir. 1996) (reversing dismissal of pro se prisoner’s claim that he received “not just ran[c]id
food” but also a “nutritionally deficient” diet). Whether these deprivations support a finding that
a plaintiff faces imminent danger of serious physical injury is another question.
And as for Plaintiff’s claim that he was denied adequate exercise opportunities, this is a
question that the Court cannot answer. Given obviously conflicting allegations, the Court cannot
assess the scope of the deprivation or its urgency. On the one hand, Plaintiff alleges that “[w]ith
only one exception (Nov. 25, 2011), Plaintiff has never been allowed outside of the cell in which
he is housed for outdoor exercise” (Doc. 12, p. 6). On the other hand, Plaintiff goes on to allege
that “the denial of outdoor yard was not consist[e]nt but did occur” between March and
April 2015 (Doc. 12, p. 14). He further alleges that since April 2015, C/O Dunbar has denied
him access to outside yard, but does not allege that other officers did the same (including either

Page 5 of 10

C/O Engelage or C/O Reynolds). Given this conflicting information, the Court cannot determine
the extent of the deprivation or analyze the dangers it poses to Plaintiff’s physical health.
Plaintiff’s additional failure to address in-cell exercise opportunities adds nothing to his claim of
imminent danger.
What is more, the amended complaint does not mention C/O Engelage in connection with
the claim at all.

C/O Reynolds is mentioned only once.

According to the allegations,

C/O Reynolds was “the first gallery officer” to deny Plaintiff outdoor yard in 2011, based solely
on his refusal to submit to a tuberculosis skin test (Doc. 12, p. 14). Whether C/O Reynolds
denied Plaintiff access to outdoor yard more than once is unclear. What is clear is that a denial
of outdoor yard occurring four years ago is too remote to support a finding of imminent danger.
See Ciarpaglini, 352 F.3d at 330 (holding that allegations of past harm do not suffice to establish
imminent danger).
Although Plaintiff’s inadequate nutrition claim “gives the Court pause,” just as it has
done before, the allegations in the amended complaint do not support a finding that Plaintiff’s
nutritionally inadequate diet places him in imminent danger. See Allen v. Hanks, et al., Case No.
14-cv-883-JPG (S.D. Ill. 2014) (Doc. 3, pp. 6-7).

According to the amended complaint,

Plaintiff was given food trays with reduced portion sizes for a six-month period (July 18, 2014 January 31, 2015).

He estimates that he received half of the standard portions of food.

Consequently, Plaintiff lost an “excessive” amount of weight. He also suffered from bouts of
constipation. Plaintiff claims that his compromised physical appearance places him at greater
risk of attack by other inmates.
This is not the first time that Plaintiff has asserted this claim. See id. Once again, his
allegations fail to support a finding of imminent danger. He claims that he has suffered from

Page 6 of 10

“excessive” weight loss, but offers no further information in this regard. The complaint is
devoid of allegations addressing his actual weight before or after his food portions were reduced,
his current weight, the total amount of his weight loss, or other factors impacting his weight
(e.g., illness or hunger strike). Further, Plaintiff’s prayer for relief is unrelated to this claim.
In it, he seeks an order granting him access to outdoor exercise opportunities. Finally, Plaintiff’s
related claim that his compromised physical appearance places him at risk of attack by other
inmates is conclusory. See Ciarpaglini, 352 F.3d at 331 (“prisoner’s claims of imminent danger
[that] are conclusory or ridiculous” do not satisfy Section 1915(g)).
Having made no showing of imminent danger, Plaintiff cannot proceed in forma pauperis
in this action. Accordingly, the IFP motion must be denied (Doc. 6). Plaintiff is obligated to pay
the full filing fee of $400.00 for this action. If he would like the Court to proceed with a
preliminary review of his amended complaint under 28 U.S.C. § 1915A, Plaintiff must prepay
the full amount of this filing fee within thirty (30) days of this Order (on or before August 5,
2015).
Pending Motion
Buried in the 34-page exhibit to Plaintiff’s amended complaint is a motion for a
temporary restraining order (“TRO”) and preliminary injunction (Doc. 12-1, pp. 9-11) and
supporting memorandum of law (Doc. 12-1, pp. 12-16). In the motion, Plaintiff seeks an order
allowing him to attend outside yard while this action is pending.
A TRO is an order issued without notice to the party to be enjoined that may last no more
than fourteen days. See FED. R. CIV. P. 65(b)(2). A TRO may issue only if “specific facts in an
affidavit or a verified complaint clearly show that immediate or irreparable injury, loss, or
damage will result to the movant before the adverse party can be heard in opposition.”

Page 7 of 10

FED. R. CIV. P. 65(b)(1)(A). Such injunctive relief is also warranted “to prevent a substantial
risk of serious injury from ripening into actual harm.” Farmer v. Brennan, 511 U.S. 825, 845
(1994).
In contrast to a TRO, a preliminary injunction is issued only after the adverse party is
given notice and an opportunity to oppose the motion. See FED. R. CIV. P. 65(a)(1). “A plaintiff
seeking a preliminary injunction must establish that he is likely to succeed on the merits, that he
is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of
equities tips in his favor, and that an injunction is in the public interest.” Winter v. Natural
Resources Defense Council, Inc., 555 U.S. 7, 20 (2008) (citations omitted). See also Korte v.
Sebelius, 735 F.3d 654, 665 (7th Cir. 2013); Woods v. Buss, 496 F.3d 620, 622 (7th Cir. 2007);
Cooper v. Salazar, 196 F.3d 809, 813 (7th Cir. 1999).
Plaintiff’s request for relief is not supported by the allegations in his amended complaint
or his motion. Liability under 42 U.S.C. § 1983 is premised on personal involvement in the
deprivation of a constitutional right. Minix v. Canarecci, 597 F.3d 824, 833 (7th Cir. 2010)
(citing Palmer v. Marion County, 327 F.3d 588, 594 (7th Cir. 2003)). Plaintiff’s exercise claim
arises under the Eighth Amendment. He sues C/O Engelage and C/O Reynolds for denying him
opportunities to exercise outside. Although the deprivation of exercise can rise to the level of an
Eighth Amendment violation, Plaintiff has not demonstrated that either defendant was personally
involved in a violation.
Neither pleading suggests that these defendants denied Plaintiff an opportunity to
exercise outside. The amended complaint does not mention C/O Engelage at all in connection
with this claim. The only allegation pertaining to C/O Reynolds addresses the 2011 denial of
outdoor exercise on one occasion. These allegations fall far short of stating a claim against

Page 8 of 10

either defendant, let alone supporting a request for emergency relief. Accordingly, the motion
for TRO and preliminary injunction shall be DENIED without prejudice.
Disposition
The CLERK is hereby DIRECTED to create a separate docket entry in CM/ECF for
Plaintiff’s motion for temporary restraining order and preliminary injunction (Doc. 12-1, pp. 911) and supporting memorandum of law (Doc. 12-1, pp. 12-16).
IT IS HEREBY ORDERED that, for the reasons stated above, Plaintiff’s motion for
temporary restraining order and preliminary injunction is DENIED without prejudice.
IT IS ALSO ORDERED that, for the reasons stated above, Plaintiff’s motion for leave
to proceed in forma pauperis (Doc. 6) is DENIED.
IT IS FURTHER ORDERED that Plaintiff shall pay the full filing fee of $400.00 for
this action within thirty (30) days of the date of entry of this Order (on or before August 5,
2015). 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’s obligation to pay the
filing fee for this action was incurred at the time the action was filed, thus the filing fee for this
case remains due and payable—and will be collected one way or another. See 28 U.S.C.
§ 1915(b)(1); Lucien v. Jockisch, 133 F.3d 464, 467 (7th Cir. 1998).
Finally, Plaintiff is ADVISED that he is under a continuing obligation to keep the Clerk
of Court informed of any change in his address. This shall be done in writing and not later than
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. See FED. R. CIV. P. 41(b).

Page 9 of 10

IT IS SO ORDERED.
DATED: July 6, 2015
s/ MICHAEL J. REAGAN_
United States Chief District Judge

Page 10 of 10