Watford v. Ellis et al

Filing 83

ORDER: Plaintiff's Motion for Leave to Appeal in Forma Pauperis (Doc. 78 ) is DENIED. Watford shall tender the appellate filing and docketing fee of $505.00 to the Clerk of Court in this District within 30 days of the date of entry of this order. Alternatively, he may reapply for leave to appeal IFP directly with United States Court of Appeals for the Seventh Circuit. Signed by Chief Judge Nancy J. Rosenstengel on 2/11/2020. (mlp)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
MARLON WATFORD,
Plaintiff,
v.

Case No. 3:16-CV-582-NJR

KELLIE ELLIS, BRAD BRAMLETT,
TONYA KNUST, and LACY REAMS,
Defendants.

MEMORANDUM AND ORDER
ROSENSTENGEL, Chief Judge:
Pending before the Court is Plaintiff Marlon Watford’s Motion for Leave to
Proceed on Appeal in Forma Pauperis (Doc. 78). The undersigned granted summary
judgment to Defendants on September 16, 2019 (Doc. 67), and entered judgment the
following day (Doc. 70). Watford subsequently filed a Motion to Alter and Amend
Judgment (Doc. 72), which was denied on January 13, 2020 (Doc. 75). Watford now seeks
to appeal the Court’s judgment without full prepayment of the appellate filing fee.
A federal court may permit a party to proceed in forma pauperis (“IFP”) on appeal
provided the party is indigent and the appeal is taken in good faith. 28 U.S.C. § 1915(a)(1)
& (3); FED. R. APP. P. 24(a)(3)(A); see also Walker v. O’Brien, 216 F.3d 626, 630-31 (7th Cir.
2009). An appeal is taken in good faith if it seeks review of an issue that is not clearly
frivolous, meaning that a reasonable person could suppose it to have at least some legal
merit. Walker, 216 F.3d at 632 (citing Lee v. Clinton, 209 F.3d 1025, 1026 (7th Cir. 2000)). An

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inmate who has accumulated three “strikes” under 28 U.S.C. § 1915(g), however, is
prohibited from proceeding IFP in any future civil action or on any appeal unless he is
“under imminent danger of serious physical injury.” 28 U.S.C. § 1915(g); see also Bryant v.
Brin, 621 F. App’x 859, 860 (7th Cir. 2015); Reynolds v. United States, No. 19-CV-01390-JPG,
2020 WL 128683, at *1 (S.D. Ill. Jan. 10, 2020). “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).
Here, Watford admits he has accumulated three strikes under 28 U.S.C. § 1915(g),
meaning at least three of his federal lawsuits have been dismissed as frivolous or
malicious, or because they failed to state a claim. See Watford v. Manning, No. 19-CV-3868
(N.D. Ill.) (Kendall, J.) (case dismissed with prejudice on July 17, 2019, for failure to state
a claim and as duplicative and malicious); Watford v. Doe, No. 15-CV-9540 (N.D. Ill.)
(Kendall, J.) (case dismissed with prejudice on October 11, 2017, for failure to state a claim
and for failure to disclose litigation history); Watford v. Quinn, No. 14-CV-571 (S.D. Ill.)
(Reagan, J.) (case dismissed with prejudice on August 5, 2014, for failure to comply with
court order, failure to prosecute, and failure to state a claim).
Nevertheless, Watford argues he should be permitted to proceed IFP because he
is in imminent danger of serious physical injury. Watford states that he is in imminent
danger of not being provided with an alternate way to use the bathroom when he is in
the law library, which will cause a strain on his body and cause him to soil himself. He
also claims the mental distress over not discharging his religious duty to keep his body
free of strains will aggravate his chronic stomach inflammation and IBS pain.

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The Court finds these arguments frivolous. Watford alleges he was unable to use
the restroom in the law library on one occasion in 2013. The Court declines to find that
he is in imminent danger of serious physical injury based on an alleged event that
occurred seven years ago. The Court further rejects Watford’s allegation that his anxiety
over not being able to use the restroom seven years ago is causing chronic stomach
inflammation and IBS symptoms, such that he is in imminent danger. See Ciarpaglini, 352
F.3d at 331 (“Courts also deny leave to proceed IFP when a prisoner’s claims of imminent
danger are . . . ridiculous.”).
For these reasons, Watford’s Motion for Leave to Appeal in Forma Pauperis
(Doc. 78) is DENIED. Watford shall tender the appellate filing and docketing fee of
$505.00 to the Clerk of Court in this District within 30 days of the date of entry of this
order. Alternatively, he may reapply for leave to appeal IFP directly with United States
Court of Appeals for the Seventh Circuit.
IT IS SO ORDERED.
DATED: February 11, 2020
____________________________
NANCY J. ROSENSTENGEL
Chief U.S. District Judge

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