Rendelman v. Federal Bureau of Prisons

Filing 5

ORDER denying 2 MOTION for Leave to Proceed in forma pauperis filed by Scott Lewis Rendelman. 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. Signed by Chief Judge Michael J. Reagan on 9/18/2015. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
SCOTT LEWIS RENDELMAN,
#24628-037,
Plaintiff,
vs.
FEDERAL BUREAU OF PRISONS,
Defendant.

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Case No. 15-cv-927-MJR

MEMORANDUM AND ORDER
REAGAN, Chief Judge:
Plaintiff Scott Lewis Rendelman, an inmate at the United States Penitentiary-Marion
(“Marion”), brings this action for deprivations of his constitutional rights by persons acting under
the color of federal authority. See Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971).
Plaintiff has also filed a motion for leave to proceed in forma pauperis in this case
without prepayment of the Court’s usual $350.00 filing fee in a civil case. (Doc. 2). See 28
U.S.C. § 1914(a). 1 Under 28 U.S.C. § 1915A, the Court is required to conduct a prompt
threshold review of the complaint. For the following reasons, Plaintiff’s motion for leave to
proceed in forma pauperis is denied.
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

1

Pursuant to 28 U.S.C. § 1914, effective May 1, 2013, an additional $50.00 administrative fee is also to
be assessed in all civil actions, unless pauper status has been granted.
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the case of civil actions, a prisoner’s affidavit of indigence must be accompanied by “a certified
copy of the trust fund account statement (or institutional equivalent) for the prisoner for the 6month 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).
In this case, Plaintiff has tendered an affidavit of indigence that is sufficient as to form,
but he is nonetheless barred by 28 U.S.C. § 1915(g). According to 28 U.S.C. § 1915, 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). On these grounds, Plaintiff’s motion to proceed in forma pauperis (Doc. 2)
must be denied.
On the court-provided in forma pauperis application form, Plaintiff claims that he has not
begun any other lawsuits in state or federal court relating to his imprisonment. See Doc. 2, p. 3.
Court documents are, however, public records of which the Court can take judicial notice. See
Henson v. CSC Credit Servs., 29 F.3d 280, 284 (7th Cir. 1994).

Documents filed in the

electronic docket of this Court and the Public Access to Court Electronic Records (“PACER”)
website (www.pacer.gov) reveal that Plaintiff has, in fact, already filed at least three previous
cases that were dismissed as frivolous, malicious, or for failure to state a claim: Rendelman v.
Badger, Case No. 08-1812 (N.D. Ohio, dismissed Nov. 25, 2008); Rendelman v. Weirlich, Case
No. 09-cv-964 (S.D. Ill., dismissed May 13, 2010); and Rendelman v. Neumann, et al, Case No.
11-cv-245-MJR (S.D. Ill., dismissed Jan. 4, 2012). Because Plaintiff already has three “strikes”

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for purposes of § 1915(g), 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)).
The present complaint is devoid of allegations that might lead the Court to conclude that
Plaintiff is in imminent danger of serious physical injury. In fact, Plaintiff himself makes no
such claim. Instead, the basis of Plaintiff’s claim is that his First Amendment rights have been
violated because prison officials refuse to mail a letter he wrote because they contend it
encourages activities that may lead to the use of physical violence. Doc. 1, p. 5. As such,
Plaintiff’s claims do not meet the exception to the three strikes rule.
The Court concludes that Plaintiff has not shown that he is under imminent danger of
serious physical injury so as to escape the “three-strikes” rule of Section 1915(g), thus, he cannot
proceed in forma pauperis in this case. Therefore, it is hereby ORDERED that Plaintiff’s
motion for leave to proceed in forma pauperis 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 twenty-

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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. 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 is ADVISED that his obligation to pay the $400.00 filing fee for this action was
incurred at the time the action was filed. See 28 U.S.C. § 1915(b)(1); Lucien v. Jockisch, 133
F.3d 464, 467 (7th Cir. 1998).
Finally, Plaintiff is FURTHER ADVISED that he is under a continuing obligation to
keep the Clerk 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
(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 and may result in a dismissal of this action
for want of prosecution.
IT IS SO ORDERED.
DATED: September 18, 2015

s/ MICHAEL J. REAGAN
CHIEF JUDGE
UNITED STATES DISTRICT COURT

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