Box et al v. Yandle

Filing 12

ORDER DISMISSING CASE 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, et al.,
Plaintiffs,
vs.
STACI M. YANDLE, et al.
Defendants.

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Case No. 3:15-cv-00658-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. 11) and payment of the filing fee (Doc. 10).
By way of background, this case arises out of another pending in this district court. On
May 4, 2015, Keith Box filed a complaint under 42 U.S.C. § 1983, alleging that several Missouri
and Illinois prison officials were conspiring to kill him and his 300-plus girlfriends–an
auspicious list that includes Beyoncé Knowles, Danica Patrick, Halle Berry, and other major
celebrities. The May 4, 2015 case was numbered 3:15-cv-00501 and assigned to Judge Yandle.
As a part of that case, Box moved for pauper status so that he could pay the court filing in
installments. Judge Yandle denied that motion on May 22, 2015, finding that Box had a history
of frivolous litigation in the federal courts 1 and could not proceed as a pauper in that case
because the allegations of danger in his complaint were utterly fantastic and delusional. Judge
Yandle gave Box 21 days to pay the filing fee or his case would be dismissed. Seventeen days
after Judge Yandle’s ruling, Box asked for an extension of time to pay the filing fee.
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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Between Judge Yandle’s May 22 ruling and Box’s June 8 extension request, Box was
busy filing another action in the United States District Court for the Central District of Illinois,
this time naming the same defendants as before and several others, including Judge Yandle. The
new complaint alleged the same conspiracy as in Box’s first complaint, along with a claim that
Judge Yandle violated Box’s rights by ruling against him. That 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 case, Judge Yandle recused herself from the new case
and the old one, and both were transferred to the undersigned judge.
With his new case, Box filed a motion to proceed as a pauper. On June 24, 2015, the
Court issued an order denying that motion, finding that the allegations of danger in Box’s new
complaint were just as delusional as the ones in his first complaint. The Court gave Box until
July 8 to pay the Court’s filing fee or face dismissal. Since that time, Box has filed a motion
asking this judge to recuse herself. This order will deal with the pending matters in Box’s new
case; a separate order will issue today regarding pending items in Box’s first 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
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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
names another judge on a Court as a defendant 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 must be denied. To begin, the
motion attempts to add facts to the imminent danger inquiry, but 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 . . .
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.”); 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
motions. 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 accept the complaint piecemeal”). Because the allegations in the
complaint do not support credible danger, pauper status was properly withheld.
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 who) 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
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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
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. 11), construed as a
motion for recusal and motion to reconsider the denial of pauper status, is DENIED.

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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);
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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