Postlewaite v. Vaughn

Filing 9

It is hereby ORDERED that Plaintiff's motion for leave to proceed IFP in this case (Doc. 6) is DENIED. 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 (on or before August 2, 2016). If Plaintiff fails to comply with this payment order in the time allotted by the Court, this case will be dismissed. (Action due by 8/2/2016). Signed by Chief Judge Michael J. Reagan on 7/11/2016. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
JARVIS POSTLEWAITE, # R-25461,
Plaintiff,
vs.
MR VAUGHN,
Defendant.

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Case No. 16-cv-376-MJR

MEMORANDUM AND ORDER
REAGAN, Chief District Judge:
Plaintiff, currently incarcerated at Pontiac Correctional Center (“Pontiac”), has
brought this pro se civil rights action pursuant to 42 U.S.C. § 1983. His claim arose while he
was confined at Lawrence Correctional Center (“Lawrence”).
This matter is before the Court on a motion for leave to proceed in forma pauperis
(“IFP”) brought by Plaintiff (Doc. 6). Also before the Court is Plaintiff’s motion for a status
report on the case (Doc. 8). This status motion (Doc. 8) is GRANTED insofar as the status is
reflected herein.
In the motion at Doc. 6, Plaintiff seeks leave to proceed IFP in this case without
prepayment of the Court’s usual $400.00 filing fee in a civil case. 1 See 28 U.S.C. § 1914(a).
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

1

A litigant who is granted IFP status must pay a filing fee of only $350.00, as he is not assessed the
$50.00 administrative fee for filing an action in a district court. See Judicial Conference Schedule of Fees
- District Court Miscellaneous Fee Schedule, 28 U.S.C. § 1914, No. 14.
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belief that the person is entitled to redress.” 28 U.S.C. § 1915(a)(1). In 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 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). If IFP status is
granted, a prisoner is assessed an initial partial filing fee according to the formula in 28 U.S.C.
§ 1915(b)(1)(A)-(B). Thereafter, a prisoner is required to make monthly payments of twenty
percent of the preceding month’s income credited to the prisoner’s trust fund account. See 28
U.S.C. § 1915(b)(2). This monthly payment must be made each time the amount in the account
exceeds $10.00 until the filing fee in the case is paid. See id. Importantly, a prisoner incurs the
obligation to pay the filing fee for a lawsuit when the lawsuit is filed, and the obligation
continues regardless of later developments in the lawsuit, such as denial of leave to proceed IFP
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); In re Tyler, 110 F.3d 528, 529-30 (8th Cir. 1997).
In this case, Plaintiff has tendered an affidavit of indigence that is sufficient as to
form, but this is not the end of the matter. Pursuant to 28 U.S.C. § 1915A, a district court “shall
review, before docketing, if feasible or, in any event, as soon as practicable after docketing, a
complaint in a civil action in which a prisoner seeks redress from a governmental entity or
officer or employee of a governmental entity.” 28 U.S.C. § 1915A(a). The statute provides
further that, “[o]n review, the court shall identify cognizable claims or dismiss the complaint, or
any portion of the complaint, if the complaint . . . is frivolous, malicious, or fails to state a claim
upon which relief may be granted[.]” 28 U.S.C. § 1915A(b)(1). Under 28 U.S.C. § 1915,
In no event shall a prisoner bring a civil action or appeal a judgment in a civil
action or proceeding under this section if the prisoner has, on 3 or more prior
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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). Court documents are, of course, public records of which the Court can take
judicial notice. See Henson v. CSC Credit Servs., 29 F.3d 280, 284 (7th Cir. 1994).
Review of documents filed in this Court’s docket and in the Public Access to
Court Electronic Records (“PACER”) website (www.pacer.gov) discloses the following actions
brought by Plaintiff while a prisoner seeking redress from officers or employees of a
governmental entity that have been dismissed on the grounds that they were frivolous, malicious,
or failed to state a claim upon which relief may be granted: Postlewaite v. Godinez, et al., No.
13-cv-6376 (N.D. Ill., filed Sept. 5, 2013) (strike 1, dismissed Nov. 5, 2013, for failure to state a
claim upon which relief may be granted); Postlewaite v. Godinez, et al., No. 14-cv-501 (S.D. Ill.,
filed April 29, 2014) (strike 2, dismissed June 26, 2014, for failure to state a claim upon which
relief may be granted); and Postlewaite v. Duncan, et al, Case No. 14-cv-1312 (S.D. Ill.) (strike
3, dismissed February 23, 2015, for failure to state a claim upon which relief may be granted).
Because Plaintiff has three “strikes” 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
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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)).
In this case, Plaintiff’s complaint, as well as Plaintiff’s motion for leave to
proceed IFP, are devoid of allegations that might lead the Court to conclude that Plaintiff is
under imminent danger of serious physical injury.
Plaintiff claims that during the month of Ramadan in June-July 2014, Defendant
Chaplain Vaughn failed to put his name on the list of inmates to be placed on the special diet list.
As a result, Plaintiff’s ability to practice his religion was curtailed for 20 days, and he missed
approximately 20 meals during the Ramadan fast (Doc. 1, pp. 3-4). While these allegations
indicate that Defendant Vaughn may have violated Plaintiff’s First Amendment rights, they do
not suggest that Plaintiff was facing imminent danger of serious physical injury, either at the
time he filed this complaint, or at the time of the alleged violation.
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 IFP in this case. Therefore, it is hereby ORDERED
that Plaintiff’s motion for leave to proceed IFP in this case (Doc. 6) is DENIED.
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 (on or before August
2, 2016). If Plaintiff fails to comply with this payment 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). Additionally,

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the Court shall order payments to be deducted from Plaintiff’s prisoner trust account in
accordance with § 1915(b) until the $400.00 fee is paid in full.
The Court further notes that Plaintiff failed to disclose any of his previous
litigation activity in his complaint. Although he used part of the Court’s standard civil rights
complaint form to prepare his pleading, he intentionally omitted the page that instructs the
plaintiff to list his previously-filed lawsuits. Notably, Plaintiff was advised in the order assessing
his most recent “strike” that he would no longer be eligible to pay future court filing fees in
installments using the in forma pauperis provisions of § 1915(a) and (b), unless he can establish
that he is “under imminent danger of serious physical injury.” 28 U.S.C. § 1915(g). See Doc. 12
in Postlewaite v. Duncan, et al, Case No. 14-cv-1312 (S.D. Ill., Feb. 23, 2015). Plaintiff’s
omission of his litigation history in the instant complaint suggests that Plaintiff may have
intended to deceive the Court regarding his eligibility to proceed in forma pauperis in this action.
The Court relies on a party’s litigation history listed in his or her complaint to
adhere to the three-strike requirement of 28 U.S.C. § 1915(g), and thus there is a need for
reliable information about prior litigation. As a result, where a party fails to provide accurate
litigation history, the Court may appropriately dismiss the action for providing fraudulent
information to the Court.

Hoskins v. Dart, 633 F.3d 541, 543 (7th Cir. 2011) (dismissal

appropriate where Court-issued complaint form clearly warned Plaintiff that failure to provide
litigation history would result in dismissal). See also 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).

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Plaintiff is therefore

WARNED that if he fails to disclose his litigation history in any future pleadings filed in this
Court, he will face summary dismissal of the case, and may face further sanctions.
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, and
that 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: July 11, 2016
s/ MICHAEL J. REAGAN
Chief Judge
United States District Court

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