Box v. Duncan et al

Filing 16

ORDER DISMISSING without prejudice for failure to pay the Court's filing fee and for failure to abide by an order of the Court under Federal Rule of Civil Procedure 41(b). Signed by Judge Nancy J. Rosenstengel on 7/16/2015. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
KEITH BOX,
Plaintiff,
vs.
M. DUNCAN, and
WALTER FRISON,
Defendants.

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Case No. 3:15-cv-00501-NJR

MEMORANDUM AND ORDER
ROSENSTENGEL, District Judge:
This matter comes before the Court for docket management related to several pending
matters, namely Plaintiff’s Motion for Recusal (Doc. 15) and payment of the filing fee (Doc. 7 &
Doc. 14).
Despite the fact that this case has not even progressed to screening, Box’s history in this
Court is a bit complicated. By way of background, Box is a prisoner at the Jefferson City
Correctional Center in Jefferson City, Missouri. He filed his initial complaint in this Court on
May 4, 2015, and his case was assigned to Judge Yandle. Box’s complaint alleged a longrunning conspiracy by Missouri and Illinois prison officials to kill Box and his 300-plus
“girlfriends/children’s mothers” (an auspicious list of women that includes Beyoncé Knowles
and Halle Berry). Box claimed that Mindy Duncan, the Deputy Clerk of this Court’s Benton
division, recently joined the conspiracy when she returned subpoenas that Box sent to this Court
for some of Box’s girlfriends. Those returned subpoenas were seen by Walter Frison, Box’s
prison caseworker, thereby revealing the identities of Box’s girlfriends to prison officials and
allowing those officials to proceed with their plan to attack these A-list celebrities.
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With his complaint, Box filed a motion to proceed as a pauper and pay the Court’s filing
fee in installments. The rub is that Box is a frequent filer—he has run up over three strikes by
filing frivolous cases in the federal courts 1—and so can proceed as a pauper only if his complaint
alleges that he was “under imminent danger of serious physical injury.” 28 U.S.C. § 1915(g).
On May 22, 2015, Judge Yandle reviewed Box’s complaint and found that it did not allege any
credible risk of serious danger. The closest thing to “danger” in Box’s complaint were his
allegations of a vague and difficult-to-follow conspiracy among prison officers, judges, and state
employees to harm Box and his A-list belles, but Judge Yandle found those allegations to be
fantastic and delusional. Accordingly, she denied Box’s motion to proceed as a pauper, and she
gave Box until June 12 to pay the full filling fee or his case would be dismissed.
Since Judge Yandle’s order, Box has filed a number of motions in this matter and brought
another action—all in an apparent effort to skirt around Judge Yandle’s pauper order. First, Box
filed several motions in his initial case, including a motion for an extension of time to pay the
filing fee and several motions to add defendants and allegations to his complaint. Second, Box
filed a separate complaint in the United States District Court for the Central District of Illinois;
the new complaint raised the same allegations of a murderous conspiracy against Box and his
girlfriends as Box’s first complaint, but named several new defendants, including many judges of
the Eastern District of Missouri and Judge Yandle of this Court. The new case was transferred to
this Court on June 12, 2015, numbered 3:15-cv-00658, and by random draw assigned to Judge
Yandle. Given the allegations in the new complaint, Judge Yandle recused herself from the new
case and the old case, and both were transferred to the undersigned judge.

1

Box files most of his federal cases in the United States District Court for the Eastern District of
Missouri; Box v. Nixon, No. 4:15-cv-00021, 2015 WL 1935837, at *2 n.1 (E.D. Mo. Apr. 28, 2015),
details three of his previous strikes under the Prison Litigation Reform Act.

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On June 24, 2015, the Court disposed of the pending motions in Box’s first case and gave
Box until July 8 to pay the Court’s filing fee or face dismissal. Since then, Box has filed a
motion asking this judge to recuse herself. This order will deal with the pending matters in
Box’s first case; a separate order will issue today regarding pending items in Box’s new case.
The first item pending in Box’s initial case is his motion to recuse. The motion really
seeks two things: it asks this judge to recuse herself due to bias, and it seeks to add allegations
of danger to Box’s complaint. The Court will deal with the recusal matter first. 28 U.S.C. § 144
addresses the standard for recusal and requires a judge to recuse herself if a party files a timely
and sufficient affidavit suggesting bias or prejudice against the party. Tezak v. United States,
256 F.3d 702, 716-17 (7th Cir. 2001). The affidavit is not sufficient unless it includes facts
about times, places, persons, and circumstances that would convince a reasonable person that the
judge is prejudiced—“simple conclusions, opinions, or rumors are insufficient.” Hoffman v.
Caterpillar, Inc., 368 F.3d 709, 718 (7th Cir. 2004). Once more, the source of bias must be
extrajudicial; in other words, it must not have derived from “what the judge has learned through
participation in the case.” United States v. Balistrieri, 779 F.2d 1191, 1199 (7th Cir. 1985).
Box’s recusal motion must be denied. For one, the motion is not supported by an
affidavit: the motion is not even signed, let alone sworn or otherwise certified. In addition,
nothing Box alleges would convince a reasonable person that this judge is biased against Box.
Box seems to claim that this judge must be conspiring against him because she has ruled against
him in the past, but that kind of non-extrajudicial activity does not suggest bias or prejudice by a
judge. See Lieteky v. United States, 510 U.S. 540, 555 (1994) (“[J]udicial rulings alone almost
never constitute a valid basis for a bias or partiality motion.”). Box also suggests that this judge
must be biased because Box has sued another judge on this Court, but the mere fact that a litigant
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names another judge on a Court as a defendant in a separate case does not imply that all judges
on that Court are biased. In the end, Box has not backed up his recusal motion with an affidavit,
and his allegations do not suggest bias by this judge, so the motion to recuse must be denied.
Bound up in Box’s recusal motion are additional allegations concerning the conspiracy to
harm Box and his many girlfriends, which—like his recusal arguments—are quite difficult to
make out. The Court will construe these arguments as a motion to reconsider the Court’s
previous decision to deny Box’s pauper application. This motion, like his last one, must be
denied. To begin, the motion attempts to add facts to the imminent danger inquiry, but as Box
was told in Judge Yandle’s order, the initial assessment of imminent danger is made by looking
at the allegations in the complaint. See, e.g., Andrews v. Cervantes, 493 F.3d 1047, 1053 (9th
Cir. 2007) (in deciding whether a prisoner faced the requisite harm under § 1915, courts maintain
“a singular focus on the facts alleged in the complaint”); Ibrahim v. Dist. of Columbia, 463 F.3d
3, 6 (D.C. Cir. 2006) (“In determining whether [a prisoner] qualified [for the imminent danger
exception], we look to the complaint . . . .”); Ciarpaglini v. Saini, 352 F.3d 328, 330 (7th Cir.
2003) (court evaluating an in forma pauperis request “must review a frequent filer’s well-pled
allegations to ensure that the prisoner is not in imminent danger”). And a plaintiff cannot add to
the complaint by filing piecemeal motion after piecemeal motion. See, e.g., Taylor v. Brown,
787 F.3d 851, 858 (7th Cir. 2015) (proper method to add or delete claims is via Rule 15, which
allows a “plaintiff to amend his complaint – including by adding or dropping parties and
claims”); Spreck v. U.S. Veterans Admin., 67 F. App’x 963, 964 (7th Cir. 2003) (court “not
required to incorporate [a plaintiff’s] revised caption into an earlier submitted complaint and

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accept the complaint piecemeal”). Because the allegations in the original complaint do not
support credible imminent danger, pauper status was properly withheld. 2
But even if the Court considered the new facts offered in Box’s recusal motion, the
allegations in the motion do not suggest a credible risk of imminent danger. Box’s new motion
seems to allege that Missouri and Illinois officials are conspiring to harm him and his A-list
girlfriends and other loved ones with the help of private celebrities (like Magic Johnson and
Michael Jordan) and former death row prisoners who have been released from custody on prison
officials’ orders. This conspiracy led to past injuries against Box, his girlfriends, and his allies:
Box says that someone (he does not specify who) fractured one of his hip bones, slammed him
into a concrete floor while handcuffed, and attempted to poison him “through the prison store” in
May 2013 to further the conspiracy; that other parties (again, we do not know how) attempted to
poison his cellmate in 2015 to further the conspiracy; and that some of his relatives and loved
ones (celebrities and all) have been stalked by prisoners who were released from custody by state
officials with a directive to murder – again to effectuate the conspiracy against Box.
These allegations do not get Box around the prepayment requirement for two reasons.
First, while Box’s motion is difficult to read and understand, most of the allegations of harm to
Box appear to have occurred in the past, and thus they do not support a risk of current, imminent
harm. See Fletcher v. Menard Corr. Ctr., 623 F.3d 1171, 1174 (7th Cir. 2010) (exception for
imminent injury designed “to prevent impending harms, not those harms that had already
occurred”). Second, and more fundamentally, Box’s complaint describes a long-lived, extremely
wide-ranging, fantastic, and apparently hopelessly-inept conspiracy that has had Box’s death as
its goal for several years. To the extent Box is trying to demonstrate imminent danger with
2

Box has been repeatedly told that, if he wishes to flesh out the allegations of imminent danger in his
initial complaint, he must file an amended complaint. He has ignored that directive.

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actions done or threatened by unspecified individuals involved in this conspiracy, the allegations
in total are irrational and delusional, and thus cannot support imminent danger under § 1915(g).
See, e.g., Day v. City of Chicago, Ill., 507 F. App’x 595, 595 (7th Cir. 2013) (claim that police
attempted to “poison [a prisoner] by placing insects in his room at the YMCA” was “utterly
fantastic”); Rittner v. Kinder, 290 F. App’x 796, 797-98 (6th Cir. 2008) (“irrational or wholly
incredible” allegations of harm should be rejected); Ciarpaglini, 352 F.3d at 331 (“conclusory or
ridiculous” claims not credible for purposes of determining a risk of imminent physical harm);
Gibbs v. Cross, 160 F.3d 962, 967 (3d Cir. 1998) (“clearly baseless,” “fantastic” or “delusional”
statements of harm should not be credited by the courts). Because these new facts do not support
a credible danger, Box’s motion to reconsider must be denied.
With the matters in the recusal motion out of the way, the only remaining item is the
Court’s filing fee – Box was given until July 8, 2015 to pay it. That day has come and gone, so
Box’s complaint must be dismissed without prejudice, and his case will be closed.
Disposition
IT IS HEREBY ORDERED that Plaintiff’s motion for recusal (Doc. 15), construed as a
motion for recusal and motion to reconsider the denial of pauper status, is DENIED.
IT IS FURTHER ORDERED that, for the reasons stated above, this action is
DISMISSED without prejudice for failure to pay the Court’s filing fee and for failure to abide
by an order of the Court under Federal Rule of Civil Procedure 41(b).
The CLERK is DIRECTED to close this case and enter judgment accordingly.
Plaintiff incurred the obligation to pay the filing fee for this lawsuit when it was filed,
and that obligation continues regardless of later developments in the lawsuit, such as denial of
leave to proceed in forma pauperis or dismissal of the suit. See 28 U.S.C. § 1915(b)(1) & (e)(2);
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Lucien v. Jockisch, 133 F.3d 464, 467 (7th Cir. 1998). To date, Plaintiff has paid no portion of
the filing fee. Therefore, a separate order will issue for the prison Trust Fund Officer to deduct
payments from Plaintiff’s trust fund account until the filing fee is paid in full.
If Plaintiff wishes to appeal this dismissal, his notice of appeal must be filed with this
Court within thirty days of the entry of judgment. FED. R. APP. P. 4(a)(1)(A). A motion for
leave to appeal in forma pauperis should set forth the issues Plaintiff plans to present on appeal.
See FED. R. APP. P. 24(a)(1)(C). 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 v. Gerlinger, 547 F.3d 724, 725-26 (7th Cir. 2008); Sloan v.
Lesza, 181 F.3d 857, 858-59 (7th Cir. 1999). A timely motion filed pursuant to Federal Rule of
Civil Procedure 59(e) may toll the 30-day appeal deadline. FED. R. APP. P. 4(a)(4).
IT IS SO ORDERED.
DATED: July 16, 2015
______________________________
NANCY J. ROSENSTENGEL
United States District Judge

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