Bankston v. Dennison et al
ORDER DENYING 2 MOTION for Leave to Proceed in forma pauperis filed by Rinaldo Bankston. IT IS 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 February 1, 2018). If Plaintiff fails to comply with this Order in the time allotted by the Court, this case will be dismissed for failure to comply with a court order and/or for failure to prosecute this action. (Action due by 2/1/2018). Signed by Judge Staci M. Yandle on 1/11/2018. (tjk)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
RINALDO BANKSTON, # N-31614,
WARDEN DENNISON and
Case No. 17-cv-1371-SMY
MEMORANDUM AND ORDER
YANDLE, District Judge:
Plaintiff Rinaldo Bankston, who is currently incarcerated at Shawnee Correctional Center
(“Shawnee”), brings this action pursuant to 42 U.S.C. § 1983. This matter is now before the
Court for preliminary review. Before the Court can screen the Complaint pursuant to 28 U.S.C.
§ 1915A, however, it must first address Plaintiff’s Motion for Leave to Proceed in forma
pauperis (“IFP Motion”). (Doc. 2).
Plaintiff seeks leave to proceed IFP without prepayment of the Court’s usual $350.001
filing fee in a civil case. 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 belief that the person is entitled to
redress.” 28 U.S.C. § 1915(a)(1). In civil actions, a prisoner’s affidavit of indigence must be
accompanied by “a certified copy of the trust fund account statement (or institutional equivalent)
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 where pauper status is not granted.
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).
Plaintiff’s IFP Motion and affidavit appear to satisfy these
However, an inmate may not bring a civil action or appeal a civil judgment “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 ground 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). Plaintiff is
subject to the “three strikes rule.”
When setting forth his litigation history in the Complaint (Doc. 1, p. 3), Plaintiff
disclosed eleven actions, indicating that they were pending, settled or dismissed. However,
Plaintiff failed to disclose that the following cases were dismissed as frivolous or for failure to
state a claim upon which relief may be granted: (1) Bankston v. Cook County Jail, et al., No. 12cv-4843 (dismissed August 29, 2012, failure to state a claim); (2) Bankston v. Thaler et al., No.
17-cv-1938 (N.D. Ill., dismissed June 1, 2017, failure to state a claim); Bankston v. Dart et al.,
No. 17-cv-1421 (N.D. Ill., dismissed August 25, 2017, failure to state a claim); and Bankston v.
Vandalia Correctional Center et al., No. 17-cv-990-SMY (S.D. Ill., dismissed October 31, 2017,
Thus, prior to commencing this action, Plaintiff “struck out” by filing 3 or more prisoner
actions that were dismissed on the grounds that they were frivolous, malicious, or failed to state a
claim upon which relief may be granted. Because Plaintiff has accumulated at least 3 strikes (4
in fact) for purposes of § 1915(g), he may not proceed IFP in this or any other pending case in
federal court unless he is in imminent danger of serious physical injury. Having reviewed
Plaintiff’s Complaint, the Court concludes that he does not satisfy this requirement.
The Seventh Circuit has explained that “imminent danger” requires a “real and
proximate” threat. See Ciarpaglini v. Saini, 352 F.3d 328, 330 (7th Cir. 2003). Allegations of
past harm are not sufficient to state imminent danger; “the harm must be imminent or occurring
at the time the complaint is filed.” Id. A plaintiff does not sufficiently allege imminent danger
when he references a past injury that has not recurred. Id. “By using the term ‘imminent,’
Congress indicated that it wanted to include a safety valve for the ‘three strikes’ rule to prevent
impending harms, not those harms that had already occurred.” Abdul-Akbar v. McKelvie, 239
F.3d 307, 315 (3d Cir. 2001). Additionally, courts “deny leave to proceed IFP when a prisoner’s
claims of imminent danger are conclusory or ridiculous.” Ciarpaglini, 352 F.3d at 331 (citing
Heimermann v. Litscher, 337 F.3d 781, 782 (7th Cir. 2003)).
Here, Plaintiff does not claim that he faces imminent danger at this time. Instead, he lists
various frustrations and complaints about prison life. For instance, Plaintiff complains about the
grievance procedure (Doc. 1, pp. 15-18); dirty and “raggedy” bedding material and clothing
issued to prisoners (Doc. 1, p. 4); cell windows that are broken and electronic doors that
sometimes do not open properly (Doc. 1, p. 4); dirty ventilation and lack of air conditioning
(Doc. 1, p. 7); inadequacies in the law library (Doc. 1, p. 9); a dirty laundry room (Doc. 1, p. 5);
and mold in the showers (Doc. 1, p. 6). Moreover, some of these incidents took place in the past
and do not appear to be ongoing (e.g., prior placement in an extremely cold cell). Plaintiff also
speculates that prison officials are taking “money under the table” because he and other prisoners
have not been receiving their full state pay. (Doc. 1, p. 17). None of these allegations are
sufficient to show imminent danger.
Plaintiff’s allegations pertaining to recent medical treatment for his degenerative disc
disease, leg/ankle pain and sinus problems (Doc. 1, pp. 12-14) also fall short of stating imminent
danger. According to the Complaint, in October 2017, Plaintiff was seen by several nurses
regarding his medical complaints. (Doc. 1, pp. 12-13). Although Plaintiff references several
medical issues, he only provides specifics regarding treatment for leg/ankle pain. Id. Plaintiff
claims that his leg was swollen, hot to the touch, and severely painful. Id. He was seen by
several nurses before “he was actually ever truly referred to be seen by the doctor.” (Doc. 1, p.
The Complaint indicates that Plaintiff was examined by a nurse on October 8, 2017,
October 21, 2017, October 28, 2017 and October 31, 2017. (Doc. 1, pp. 12-14). On October 31,
2017, the examining nurse took Plaintiff’s vitals, examined his leg, took measurements of the
“knot” in his leg, prescribed Ibuprofen, and referred him to a physician. (Doc. 1, p. 14).
Although Plaintiff claims that he is still experiencing severe pain in his and is dissatisfied with
the nursing staff (describing them as “lazy” and “negligent”), these facts do not suggest that
Plaintiff is presently being denied medical care. On the contrary, Plaintiff was seen by medical
staff at least 4 times during the month of October and, on his final visit, was referred to a
physician for further care.
Finally, some of Plaintiff’s allegations, though serious, are really generalized concerns
about dangers at Shawnee and are not specific to Plaintiff. Plaintiff expresses concern about the
“many assaults by C/Os on offenders, offenders on offenders [and] the rapes” and asks “why
aren’t there any surveillance cameras?” (Doc. 1, p. 18). The Court does not take allegations of
physical or sexual assault lightly. However, alleging that other prisoners have been assaulted at
Shawnee does not establish that there is presently a real and proximate threat to Plaintiff’s safety.
After carefully considering the allegations in the Complaint, the Court concludes that
Plaintiff faces no imminent danger of serious physical injury and cannot overcome the 3-strikes
hurdle set forth under § 1915(g). Accordingly, Plaintiff’s IFP Motion shall be denied.
Warning – Litigation History
In the standard complaint form, Plaintiff was directed to list any previous lawsuits he has
brought relating to his imprisonment. The Court relies on this information in order to adhere to
the 3-strike restriction in 28 U.S.C. § 1915(g). Moreover, when the undersigned judge issued
Plaintiff’s fourth strike, see Bankston v. Vandalia Correctional Center et al., No. 17-cv-990SMY (Doc. 11), Plaintiff was warned about his “3-strike” status. Id. at p. 5. Yet, as previously
noted, when setting forth his litigation history in his Complaint, Plaintiff did not disclose any of
his strikes. Plaintiff is WARNED that failure to clearly disclose each of his strikes in future
litigation may result in the imposition of sanctions that include dismissal of the action for
attempting to commit fraud on the Court. See Hoskins v. Dart, 633 F.3d 541, 543 (7th Cir. 2011)
(court may appropriately dismiss action filed by prisoner seeking to proceed as a pauper where
he fails to accurately disclose his litigation history).
IT IS HEREBY ORDERED that Plaintiff’s Motion to Proceed in Forma Pauperis
(Doc. 2) is DENIED.
IT IS 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 February 1, 2018).
If Plaintiff fails to comply with this Order in the time allotted by the Court, this case will be
dismissed for failure to comply with a court order and/or for failure to prosecute this action. 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).
Finally, Plaintiff is 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: January 11, 2018
s/ STACI M. YANDLE
United States District Judge
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