Malone v. Illinois Department of Corrections et al

Filing 5

ORDER denying 3 MOTION for Leave to Proceed in forma pauperis filed by William A. Malone. It is HEREBY 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 thi s Order (on or before December 26, 2017). If Plaintiff fails to comply with this payment order in the time allotted by the Court, this case will be dismissed. It is FURTHER ORDERED that if Plaintiff files any future case in this Court, he SHALL DISCLOSE his complete litigation history in his complaint, including the fact that he has incurred ten (10) strikes within the meaning of 28 U.S.C. §1915(g). (Action due by 12/26/2017). Signed by Judge Staci M. Yandle on 12/1/2017. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
WILLIAM A. MALONE, # B-52858,
Plaintiff,
vs.
ILLINOIS DEPT. of CORRECTIONS,
PINCKNEYVILLE CORRECTIONAL
CENTER,
THOMAS SPILLER,
C/O BELFORD,
DONNA HEIDLEMANN,
MAJOR CLELAND,
and JOHN DOE (1-7),
Defendants.

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Case No. 17-cv-935-SMY

MEMORANDUM AND ORDER
YANDLE, District Judge:
BACKGROUND
Plaintiff William A. Malone, who is currently incarcerated at Pinckneyville Correctional
Center (“Pinckneyville”), brings this pro se civil rights action pursuant to 42 U.S.C. § 1983.
Plaintiff raises a number of claims in the Complaint (Doc. 1) and in his “Motion for Protection
Order” (Doc. 2), including that the defendants have improperly housed him in an overcrowded
cell that violates the Americans with Disabilities Act; that he has been issued “illegal”
disciplinary reports and punished with solitary confinement as well as the loss of good conduct
credits; and that he has been denied placement in protective custody.

DISCUSSION
IFP Motion
Before the Court screens the Complaint or considers the Motion for Protection Order, it
must first address Plaintiff’s request to litigate this action without prepaying the full filing fee.
The Prison Litigation Reform Act (“PLRA”) requires prisoners to pay the full filing fee. See 28
U.S.C. § 1915(b)(1). However, a prisoner who is unable to prepay the full amount may seek
permission to pay the fee over time through monthly trust fund account deductions.
Plaintiff filed a Motion for Leave to Proceed in forma pauperis (“IFP Motion”) (Doc. 3)
along with his Complaint on August 31, 2017. Plaintiff claims that he is unable to pay the filing
fee, but he has failed to submit his prisoner trust fund account statement for the 6 months prior to
the filing of this action, as required by 28 U.S.C. § 1915(a)(2) (Doc. 6). Despite the absence of
that information, the Court will review Plaintiff’s eligibility to proceed IFP in light of his
litigation history.
The PLRA sets limits on a prisoner’s ability to obtain IFP status. Pursuant to 28 U.S.C.
§ 1915(g):
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
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). In other words, a prisoner who has “struck out” by filing three or
more cases that were dismissed for one of the reasons set forth under § 1915(g) cannot proceed
IFP unless he faces imminent danger of serious physical injury. Id.
A review of documents filed in the electronic docket of this Court and the Public Access
to Court Electronic Records (“PACER”) website (www.pacer.gov) discloses that Plaintiff has
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already had 10 other cases dismissed as frivolous or for failure to state a claim upon which relief
can be granted. 1 See Malone v. Ardis, No. 13-cv-1543 (C.D. Ill. Dec. 3, 2013); Malone v. City of
Peoria, 13-cv-1559 (C.D. Ill. Feb. 20, 2014); Malone v. Hill et al., No. 16-cv-973 (S.D. Ill. Oct.
26, 2016); Malone v. Fritts, et al., No. 16-cv-200 (S.D. Ill. Nov. 7, 2016); Malone v. Unknown
Party, No. 16-cv-974 (S.D. Ill. Nov. 8, 2016); Malone v. Duvall, No. 16-cv-977 (S.D. Ill. Nov.
29, 2016); Malone v. IDOC, et al., No. 16-cv-978 (S.D. Ill. Dec. 8, 2016); Malone v. Shah, et al.,
No. 16-cv-972 (S.D. Ill. Dec. 30, 2016); Malone v. Orange Crush, No. 16-cv-975 (S.D. Ill. Dec.
30, 2016); and Malone v. Groves, et al., No. 16-cv-979 (S.D. Ill. Jan. 10, 2017). Plaintiff only
included two of these cases in the summary of his litigation history filed with this case. (Doc. 11).
A prisoner-plaintiff’s failure to fully disclose his litigation history, particularly when he
seeks leave to proceed IFP, may be grounds for immediate dismissal of the suit. 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-strike status committed a fraud upon the court).
Here, Plaintiff made an attempt to list his previous lawsuits when he filed this case (Doc. 1-1).
He identified the two 2013 cases which resulted in “strikes” (Malone v. Ardis, No. 13-cv-1543
(C.D. Ill. Dec. 3, 2013); Malone v. City of Peoria, 13-cv-1559 (C.D. Ill. Feb. 20, 2014)), but did
not mention the fact that he was assessed strikes in those cases. (Doc. 1-1, p. 1). He also
included 7 other cases filed in 2012 and 2013 which did not result in strikes. However, he
omitted any mention of the 2016 cases that resulted in 8 additional strikes.

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Plaintiff’s

The Court may take judicial notice of court documents, which are public records. See Henson v. CSC Credit
Servs., 29 F.3d 280, 284 (7th Cir. 1994).

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explanation for his failure to include the full litigation history is that his legal paperwork has
been destroyed or lost at the hands of prison officials. (Doc. 1-1, pp. 1-3). Nevertheless,
because Plaintiff has 10 “strikes” for purposes of § 1915(g), he may not proceed IFP in this case
unless he demonstrates that he is under imminent danger of serious physical injury.
“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)).
Plaintiff claims that he is under imminent danger. However, the Complaint, Motion for
Protection Order, and the IFP motion do not set forth factual allegations to support that
conclusion.
In his Motion for Protection Order (Doc. 2), Plaintiff complains that he has been
“constantly issued illegal ODR’s (Offender Disciplinary Reports) since May 13, 2013,” that
resulted in his placement in solitary confinement. (Doc. 2, p. 1). He claims that being housed in
an “illegal 4-man cell” which includes both wheelchair-bound inmates (such as Plaintiff) and
non-physically-challenged inmates places him in imminent danger due to overcrowding, “theft,
extortion and mayhem” and that the able-bodied cellmates have inflicted upon Plaintiff and other
physically-challenged cellmates. Id. Plaintiff does not describe any specific incidents or time

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frames to explain what he means by “mayhem,” or whether that includes any imminent threat of
physical harm.
Plaintiff has requested to be placed into Protective Custody (“PC”), but instead has been
retaliated against with disciplinary action, punitive segregation and loss of good-time credits.
(Doc. 2, pp. 1-2).

To remedy this situation, Plaintiff seeks placement in administrative

segregation or a transfer to another prison that has “ADA legal wheelchair space celling.” (Doc.
2, p. 2).
The Complaint repeats some of the above information regarding cell overcrowding and
alleged danger. (Doc. 1, pp. 2-3). Plaintiff also asserts that Defendants have violated the
Rehabilitation Act and Americans with Disabilities Act, as well as the First and Eighth
Amendments. (Doc. 1, p. 2). He further asserts that Belford and John Doe Defendants have
made racist and degrading comments to him on many occasions. (Doc. 1, p. 4).
Under “Count One” of the Complaint, Plaintiff claims that Defendants have posted his
criminal case history (and that of his father, which he says has been confused with his own) in
the prison’s law library, and have spread information throughout the prison labeling him a
pedophile, snitch and stoolpigeon, thus exposing him to imminent danger. (Doc. 1, p. 2). Again,
he does not indicate the time frame when this publication took place. He alleges that because he
has been denied PC placement, Defendants have put him in the position of having a “Hopkins
choice” of either remaining in general population housing where he believes he is in danger, or
“opting for potentially ongoing, indefinite atypical punitive solitary confinement celling” where
his personal property will be ransacked and destroyed. (Doc. 1, pp. 7, 15).
“Count Two” asserts that Defendants have failed to protect him from imminent danger by
refusing to place him in PC and denying or ignoring his “flurry” of identical grievances and

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memos from 2013 to the present. (Doc. 1, pp. 7-8; Doc. 1-3, pp. 6-7, 13-15). He claims he was
assaulted by another inmate in December 2016 (Doc. 1, p. 8) and that on January 16, 2017, Lt.
Webb (who is not a defendant) took him to segregation for requesting PC. Id.
In “Count Three,” Plaintiff alleges that his grievances from 2011-2016 requesting PC, a
transfer and better wheelchair accommodations, were stonewalled and/or denied by Flatt,
Benton, Lashbrook, Spiller, Love and Thomas (among these individuals, only Spiller is named as
a defendant herein). (Doc. 1, pp. 8-9). “Count Four” reiterates Plaintiff’s allegations that
Belford and Heidlemann posted his criminal information in the law library and that it was not
removed despite Plaintiff’s requests and another officer’s assurances that it would be taken
down. (Doc. 1, pp. 9-10).
“Count Five” sets forth Plaintiff’s assertion that Belford distributed Plaintiff’s criminal
case documents to staff and inmates.

(Doc. 1, p. 10).

“Count Six” alleges that Belford

repeatedly shook down Plaintiff’s property and allowed it to be destroyed and taken by other
prisoners, singling him out for that treatment in retaliation for Plaintiff’s engagement in
litigation. (Doc. 1 p. 10). “Count Seven” asserts a claim that Plaintiff submitted a FOIA request
that was denied. (Doc. 1, p. 11).
The Complaint concludes with a request for a preliminary injunction to require
Defendants to house Plaintiff in administrative segregation. (Doc. 1, pp. 11-15). He lists his
numerous physical ailments and claims that he should have been seen by a licensed clinician
within 2 hours after being placed in solitary confinement. (Doc. 1, pp. 11-12). He asserts that
since 2009, twenty inmates have died in custody at Pinckneyville after having been labeled as a
pedophile and/or a snitch. (Doc. 1, pp. 13-14). He claims that another inmate who has tried to
kill him and is supposed to be kept separate from Plaintiff was placed back in Pinckneyville.

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(Doc. 1, p. 15). In addition, Plaintiff seeks money damages. (Doc. 1, pp. 15-16).
Some of the allegations summarized above suggest that Plaintiff may have faced danger
of physical harm. However, nothing in his documents shows that Plaintiff is under imminent
danger of serious physical injury.

See 28 U.S.C. § 1915(g).

Furthermore, Plaintiff has

previously raised similar claims of danger in other lawsuits in this Court, one of which is still
pending.
The most recent physical attack mentioned by Plaintiff allegedly occurred in December
2016. (Doc. 1, p. 8). Plaintiff currently has a pending case, Malone v. Heideman, et al., Case
No. 15-cv-1104-MJR-SCW (S.D. Ill. filed Oct. 6, 2015), in which he alleges that he was attacked
by a cellmate in September 2015 after Officers Belford, Spiller, Furlow, Lind and Lawless
placed the inmate in his cell and/or failed to protect Plaintiff from the attacker. Also included in
that lawsuit is Plaintiff’s claim that in April 2014, Belford publicized Plaintiff’s criminal history
information to other inmates, allegedly in order to induce them to attack Plaintiff. It appears that
Plaintiff has recycled these allegations in his Complaint in the instant case, but without
connecting any relevant dates with his claims. Because Plaintiff does not state otherwise, the
Court concludes that attack alleged in this case dates back to either September 2015 or December
2016 – neither of which suggests an “imminent” danger of physical harm.
Likewise, the claim that Plaintiff was placed in danger when he was labeled a pedophile
and/or a snitch dates back to 2014. These matters may be addressed in due course in Case No.
15-cv-1104. But they do not suffice to demonstrate that Plaintiff is currently in imminent danger
of serious physical injury so as to proceed IFP in the present case.
Plaintiff’s claim that he has been illegally housed in a 4-man cell with non-disabled
prisoners was raised in Malone v. IDOC, Case No. 15-cv-1304-MJR-SCW (S.D. Ill. filed Nov.

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24, 2015). He also alleged in that case that Belford had placed him in danger by disclosing his
criminal history, and he sought injunctive relief to be placed in safe housing. In December 2015,
the Court determined that the case merited further consideration, and ordered the defendants to
answer the Complaint. However, on August 15, 2017, Case No. 15-cv-1304 was dismissed with
prejudice as a sanction for Plaintiff’s intentional failure to disclose his extensive litigation
history.
In addition to Plaintiff’s claims that he has been denied placement in Protective Custody,
he states that on several occasions, he faced a “Hopkins Choice” of either accepting his general
population housing assignment, or “opting for . . . punitive solitary confinement.” (Doc. 1, pp. 7,
15). It appears that this punitive confinement was the result of disciplinary action, which
Plaintiff claims to be improper. Nonetheless, a placement in segregation or solitary confinement
would remove Plaintiff from the cell assignment with the non-disabled inmates whom he wished
to avoid. The fact that Plaintiff had the opportunity to refuse his housing assignment and to be
placed elsewhere, even if that was a punitive placement, demonstrates that he could get out of
what he perceived to be harm’s way. This scenario does not support a claim that Plaintiff was
facing imminent danger of serious physical injury at the time he brought this action.
Finally, the allegation that an inmate who has threatened Plaintiff in the past, and who is
supposed to be kept separate from Plaintiff, was returned to Pinckneyville is too vague to support
a conclusion of imminent danger.

Plaintiff does not say when this person came back to

Pinckneyville, nor does he say whether the person is housed anywhere near Plaintiff or may
otherwise pose a current threat to him. Again, Plaintiff appears to have the ability to invoke
placement in segregation if he were to refuse a housing assignment.
None of the other claims raised in the Complaint (improper disciplinary action, loss of

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good-conduct credits, violations of the Rehabilitation Act and/or the ADA, verbal harassment,
denial of grievances, shakedowns and destruction of property, and denial of a FOIA request)
suggest that Plaintiff faces any imminent danger of serious physical injury. Additionally, some
of these claims would likely be subject to severance into separate cases, for which an additional
filing fee would be assessed. See George v. Smith, 507 F.3d 605 (7th Cir. 2007) (unrelated
claims against different defendants belong in separate lawsuits).
Disposition
Plaintiff has not shown that he is under imminent danger of serious physical injury so as
to escape the “three-strikes” rule of §1915(g), therefore, he cannot proceed IFP in this case.
Accordingly, Plaintiff’s Motion for Leave to Proceed IFP in this case (Doc. 3) is DENIED.
It is HEREBY 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 December
26, 2017). 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,
the Court shall order payments to be deducted from Plaintiff’s prisoner trust fund account in
accordance with § 1915(b) until the $400.00 fee is paid in full.
The Court reserves ruling on Plaintiff’s Motion for Protection Order (Doc. 2) until such
time as Plaintiff pays the filing fee in full.
It is FURTHER ORDERED that if Plaintiff files any future case in this Court, he
SHALL DISCLOSE his complete litigation history in his complaint, including the fact that he
has incurred ten (10) “strikes” within the meaning of 28 U.S.C. §1915(g). If Plaintiff fails to
make this disclosure, any case in which his litigation history is omitted shall be subject to

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immediate dismissal, and Plaintiff shall continue to be liable for the full filing fee despite the
dismissal.
As demonstrated by his extensive litigation history, Plaintiff has filed a number of
lawsuits in this Court which have resulted in substantial unpaid filing fees. After he “struck out”
in October 2016, Plaintiff filed 5 2 additional lawsuits in this Court (including this case) in the
short space of time between August 23, 2017, and October 2, 2017. One of the other 4 cases
contains a claim that the Court deemed worthy of further review based on a showing of possible
imminent danger of serious physical injury. The other three of those recent cases have been
dismissed.
A struck-out prisoner who continues to file lawsuits that fail to demonstrate an imminent
danger of serious physical injury, and who is unable to pay the filing fees, runs the risk that the
Court may restrict him from filing any future lawsuit until his outstanding filing fees are paid in
full. See Newlin v. Helman, 123 F.3d 429, 437 (7th Cir. 1997) (citing Support Sys. Int’l, Inc. v.
Mack, 45 F.3d 185 (7th Cir. 1995)) (“A prisoner who becomes ineligible under § 1915(g) to
continue litigating in forma pauperis, and who then files additional suits or appeals yet does not
pay the necessary fees, loses the ability to file future civil suits.”), overruled on other grounds by
Lee v. Clinton, 209 F.3d 1025 (7th Cir. 2000); Sloan v. Lesza, 181 F.3d 857, 859 (7th Cir. 1999)
(“[U]npaid docket fees incurred by litigants subject to § 1915(g) lead straight to an order

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In addition to this case, Plaintiff filed Malone v. Baldwin, Case No. 17-cv-895-SMY (Aug. 23, 2017);
Malone v. IDOC, Case No. 17-cv-952-NJR-DGW (Sept. 6, 2017); Malone v. Wexford, Case No. 17-cv1062-MJR (Oct. 2, 2017); and Malone v. Ship, Case No. 17-cv-1064-DRH (Oct. 2, 2017). Based on the
pleadings in Case Nos. 17-1062 and 17-1064, it was unclear whether they were intended to be a single
case, or indeed whether Plaintiff intended to file them at all. Plaintiff was ordered to clarify his intent in
both those cases and to file an amended complaint if he desired to proceed. He failed to respond, thus
both cases (Nos. 17-1062 and 17-1064) were dismissed with prejudice on November 16, 2017. Case No.
17-cv-895-SMY was dismissed on November 29, 2017, as a sanction for Plaintiff’s failure to disclose his
litigation history.

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forbidding further litigation.”). Plaintiff should be mindful that a filing ban may be imposed on
him if he continues to file lawsuits that fail to overcome the § 1915(g) hurdle.
Finally, Plaintiff is ADVISED that he is under a continuing obligation to keep the Clerk
of Court 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 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 dismissal of this action
for want of prosecution. See FED. R. CIV. P. 41(b).
IT IS SO ORDERED.
DATED: December 1, 2017

s/ STACI M. YANDLE
United States District Judge

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