Mitchell v. Dennison et al

Filing 13

ORDER DISMISSING CASE with prejudice as a sanction against Plaintiff for intentionally misrepresenting that he is eligible to proceed in forma pauperis in this case. The dismissal does not count as one of Plaintiff's three allotted strikes under 28 U.S.C. § 1915(g). The Clerk is DIRECTED to mail a copy of this Order to the Trust Fund Officer at the Shawnee Correctional Center upon entry of this Order. Signed by Chief Judge Michael J. Reagan on 5/31/2017. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
DANNEL M. MITCHELL, #R07374,
Plaintiff,
vs.
WARDEN DENNISON,
T. PITTAYATHIKHAN,
DR. DAVID,
K. SMOOT,
L. LECRANE, and
WEXFORD HEALTH CARE,
Defendants.

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MEMORANDUM AND ORDER
REAGAN, Chief District Judge:
Plaintiff Dannel Mitchell filed this civil rights action pursuant to 42 U.S.C. § 1983
against officials at Shawnee Correctional Center who allegedly failed to treat his severe back
pain after he transferred to the prison on March 24, 2017. (Doc. 2). Along with his Complaint,
Plaintiff filed a Motion for Leave to Proceed in forma pauperis (“IFP Motion”) (Doc. 3). He
sought leave to proceed without prepayment of the $400.00 filing fee. Id. In his Complaint and
IFP Motion, Plaintiff failed to disclose the fact that he “struck out” by filing three or more prior
suits that were dismissed at screening as frivolous, malicious, or for failure to state a claim. See
Mitchell v. Baldwin, No. 16-cv-00278-NJR (S.D. Ill.) (dismissed for failure to state a claim on
Aug. 9, 2016); Mitchell v. Dennison, No. 16-cv-01189-MJR (S.D. Ill.) (dismissed as frivolous on
Jan. 12, 2017); Mitchell v. Gateway Foundation, No. 17-cv-02741 (N.D. Ill.) (dismissed for
failure to state a claim on April 27, 2017). See also Mitchell v. Lupert, No. 16-cv-00486-SMY
(S.D. Ill.) (dismissed on June 14, 2016) (Doc. 8).

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Under the circumstances, Plaintiff could not proceed IFP in this action, unless his
Complaint demonstrated that he suffered from imminent danger of serious physical injury. See
28 U.S.C. § 1915(g). Had Plaintiff disclosed his three strikes and also demonstrated that he
faced imminent danger of serious physical injury, he could have overcome the three-strikes
hurdle imposed by § 1915(g). Instead, he misrepresented his litigation history to the Court by
disclosing none of his prior lawsuits.

(Doc. 2, p. 3; Doc. 3).

The Court found that the

misrepresentation was knowing and intentional. (Doc. 6). Further, Plaintiff’s failure to disclose
his litigation history while seeking leave to proceed IFP was grounds for immediate dismissal of
the suit. (Doc. 6, p. 4) (citing Hoskins v. Dart, 633 F.3d 541, 543 (7th Cir. 2011) (dismissal with
prejudice appropriate where Court-issued complaint form clearly warned Plaintiff that failure to
provide litigation history would result in dismissal); Ammons v. Gerlinger, 547 F.3d 724, 725
(7th Cir. 2008) (termination of 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-strikes status committed a fraud upon the court)). See also Postlewaite v.
Duncan, 668 F. App’x 162 (7th Cir. 2016) (immediately terminating appeal filed by plaintiff
who falsely represented to district court and Court of Appeals that he was eligible to proceed in
forma pauperis); Ramirez v. Barsanti, 654 F. App’x 822 (7th Cir. 2016) (same).
The Court ordered Plaintiff to show cause why the action should not be dismissed with
prejudice on or before May 24, 2017. (Doc. 6). In a response Plaintiff filed on May 23, 2017, he
offered no reason why he failed to disclose his litigation history. (Doc. 9). Instead, Plaintiff
stated that he is bedridden and in constant pain. (Doc. 9, pp. 1-4). He complained that prison
officials continue to ignore him. Id.

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Plaintiff’s response misses the mark entirely. He offered no reason for failing to disclose
his litigation history. Plaintiff did not explain why he checked “no” when asked whether he had
filed any other lawsuits in state or federal court relating to his imprisonment. He did not explain
why he omitted this information at the same time he was subject to an order to show cause for
the same misconduct in another pending case. Mitchell v. AIDS Foundation of Chi., No. 15-cv02907 (N.D. Ill.) (Doc. 24). The court will not tolerate this pattern of misconduct and abuse of
the IFP process. Under the circumstances, the Court deems it appropriate to sanction Plaintiff
for fraudulent litigation conduct by dismissing this action with prejudice based on the omission
of his entire litigation history from the Complaint and IFP Motion when seeking leave to proceed
IFP and his failure to offer any reason for the misconduct. (Doc. 6, p. 7) (citing Hoskins, 633
F.3d at 543).
Disposition
IT IS HEREBY ORDERED that this action is DISMISSED with prejudice as a
sanction against Plaintiff for intentionally misrepresenting that he is eligible to proceed in forma
pauperis in this case. The dismissal does not count as one of Plaintiff’s three allotted “strikes”
under 28 U.S.C. § 1915(g).
Plaintiff is WARNED that he may be subject to additional sanctions, including monetary
fines and/or a filing ban until all outstanding fines and fees are paid in full, if he seeks IFP status
and fails to disclose his litigation history or the fact that he has “struck out” under 28 U.S.C.
§ 1915(g) in any future action he files in this District.
IT IS ALSO ORDERED that Plaintiff’s obligation to pay the filing fee for this action
was incurred at the time the action was filed, regardless of subsequent developments in the case.
Accordingly, the filing fee of $400.00 remains due and payable. See 28 U.S.C. § 1915(b)(1);

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Lucien v. Jockisch, 133 F.3d 464, 467 (7th Cir. 1998). Accordingly, the agency having custody
of Plaintiff is directed to remit the $400.00 filing fee from his prison trust fund account if such
funds are available. If he does not have $400.00 in his account, the agency must send an initial
payment of 20% of the current balance or the average balance during the past six months,
whichever amount is higher. Thereafter, the agency shall begin forwarding monthly payments of
20% of the preceding month’s income credited to Plaintiff’s trust fund account (including all
deposits to the inmate account from any source) until the statutory fee of $400.00 is paid in its
entirety. The agency having custody of Plaintiff shall forward payments from Plaintiff’s account
to the Clerk of Court each time Plaintiff’s account exceeds $10.00 until the $400.00 filing fee is
paid. Payments shall be mailed to: Clerk of the Court, United States District Court for the
Southern District of Illinois, P.O. Box 249, East St. Louis, Illinois 62202.

The Clerk is

DIRECTED to mail a copy of this Order to the Trust Fund Officer at the Shawnee Correctional
Center upon entry of this Order.
If Plaintiff wishes to appeal this Order, he may file a notice of appeal with this Court
within thirty days of the entry of judgment. FED. R. APP. 4(A)(4). 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. 3(e); 28 U.S.C. § 1915(e)(2); Ammons, 547 F.3d at 725-26; Sloan, 181
F.3d at 858-59; Lucien, 133 F.3d at 467. Moreover, if the appeal is found to be nonmeritorious,
Plaintiff may also incur another “strike.” A proper and 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). A
Rule 59(e) motion must be filed no more than twenty-eight (28) days after the entry of judgment,
and this 28-day deadline cannot be extended.
The Clerk’s Office is DIRECTED to close this case and enter judgment accordingly.

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IT IS SO ORDERED.
DATED: May 31, 2017
s/ MICHAEL J. REAGAN
Chief Judge
United States District Court

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