Smith v. Spiller et al

Filing 5

ORDER denying 2 MOTION for Preliminary Injunction filed by Adam Smith, and 4 MOTION for Leave to Proceed in forma pauperis filed by Adam Smith. 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 March 8, 2018). If Plaintiff fails to comply with this payment order in the time allotted by the Court, this case will be dismissed. Plaintiff is FURTHER ADVISED t hat if he files a new case or seeks leave to proceed IFP without disclosing his litigation history, including his three strikes, he may be subject to sanctions including the dismissal of the case. (Action due by 3/8/2018). Signed by Judge David R. Herndon on 2/15/2018. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
ADAM SMITH, # S-15953,
Plaintiff,
vs.
ELIJAH SPILLER,
MAJOR ADAMS,
MAJOR JACKSON,
J. KELLER,
C/O GOLDBERG,
CHARLES W. HECK,
MARCUS A. MYERS,
KAREN JAIMET,
C/O WILLIAMS,
LT. SMITH,
COUNSELOR SELBY,
and UNKNOWN PARTY (Grievance
Officer),
Defendants.

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Case No. 18-cv-349-DRH

MEMORANDUM AND ORDER
HERNDON, District Judge:
Plaintiff, currently incarcerated at Pinckneyville Correctional Center (“Pinckneyville”),
filed this pro se civil rights action pursuant to 42 U.S.C. § 1983 on February 13, 2018. His
Complaint (Doc. 1) includes a request for an “Emergency Injunction” to force Defendants to
return Plaintiff’s legal documents to him, so that he may prepare pleadings and other papers to
file in pending cases in other districts, and so that he may initiate a new lawsuit in the Central
District of Illinois before the applicable statute of limitations expires. (Doc. 1, p. 4). On
February 14, 2018, Plaintiff filed a motion for leave to proceed in forma pauperis (“IFP”) in this
action. (Doc. 4). For the reasons set forth below, both the motion for leave to proceed IFP and

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the request for an emergency injunction (reflected on the docket sheet as Doc. 2) shall be denied.
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
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 6month 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 stating that he is without
funds to pay the $400.00 1 filing fee for this action. He has failed to provide the required trust
fund statement from the prison. Nonetheless, the Court finds it expedient at this time to review
Plaintiff’s eligibility to proceed IFP.
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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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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
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 the Public Access to Court Electronic Records (“PACER”) system
(www.pacer.gov) discloses the following actions brought by Plaintiff during his imprisonment,
in which he sought redress from officers or employees of a governmental entity, that have been
dismissed pursuant to 28 U.S.C. § 1915A on the grounds that they were frivolous, malicious, or
failed to state a claim upon which relief may be granted: Smith v. Macon Cnty. Auditor’s Office,
et al., Case No. 14-cv-2177 (C.D. Ill., dismissed Nov. 14, 2014, for failure to state a claim);
Smith v. Macon Cnty. Circuit Court, et al., Case No. 17-cv-2276 (C.D. Ill., dismissed Nov. 30,
2017, pursuant to § 1915A(b) for failure to state a claim); and Smith v. Macon Cnty. Circuit
Clerks Office, et al., Case No. 17-cv-2315 (C.D. Ill., dismissed Dec. 21, 2017, pursuant to
§ 1915A(b) for failure to state a claim). 2 Because Plaintiff has three “strikes” for purposes of

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The orders dismissing Plaintiff’s 2 most recent cases (No. 17-cv-2276 and No. 17-cv-2315) did not
explicitly inform Plaintiff that the dismissal would count as one of Plaintiff’s 3 allotted “strikes” pursuant
to 28 U.S.C. § 1915(g). Nonetheless, Plaintiff filed each case while was a prisoner, and each was
dismissed for failure to state a claim upon which relief may be granted, after the court reviewed the merits
of the case pursuant to 28 U.S.C. § 1915A. Section 1915A requires a merits review for any case filed by
a prisoner seeking relief from a governmental entity or official. A dismissal of a case on one of the
grounds enumerated in § 1915(g) counts as a “strike,” so long as the dismissal order states that the case
was dismissed as either frivolous, malicious, or for failure to state a claim upon which relief may be
granted. See Paul v. Marberry, 658 F.3d 702, 704-05 (7th Cir. 2011); Abdul-Wadood v. Nathan, 91 F.3d
1023, 1025 (7th Cir. 1996) (courts must consider actions dismissed on any of the 3 grounds listed in
§ 1915(g) when determining whether a prisoner has “struck out”).

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§ 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
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 his motion for leave to proceed IFP, are
completely devoid of allegations that might lead the Court to conclude that Plaintiff is under
imminent danger of serious physical injury. The basis for Plaintiff’s request for emergency
injunctive relief is that he fears he will miss filing deadlines in one of his pending court cases or
appeals, or that the statute of limitations will expire before he is able to prepare and submit a
complaint in a new action he plans to bring. This does not pose a threat to Plaintiff’s physical
safety. In Plaintiff’s other claims, he alleges that he was denied a single meal on 2 occasions, on
January 21 and February 8, 2018; he has not been given his personal hygiene items; and he was
issued a false disciplinary report that resulted in punishment with segregation for 1 month. (Doc.
1, pp. 2, 4-5). Again, none of these allegations raise a concern that Plaintiff faces serious
physical injury, imminent or not.

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Based on the above, 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 § 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. 4) 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 March 8, 2018). 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 account in accordance with § 1915(b) until the $400.00 fee is paid in
full.
Until the filing fee for this action is paid, the Court shall not consider granting any
injunctive or other relief. Moreover, Plaintiff’s allegations do not show that an emergency
injunction is necessary. Although he does not use this terminology, Plaintiff essentially requests
a temporary restraining order (“TRO”). A TRO is an order issued without notice to the party to
be enjoined, and may last no more than 14 days. A Court may not issue a TRO unless “specific
facts in an affidavit or a verified complaint clearly show that immediate and irreparable injury,
loss, or damage will result to the movant before the adverse party can be heard in opposition.”
See FED. R. CIV. P. 65(b)(1)(A). Federal courts must exercise equitable restraint when asked to
take over the administration of a prison, and in this case, the Court finds that Plaintiff has not
demonstrated that he faces any immediate or irreparable injury or loss that warrants this
extraordinary form of relief.
Records available in PACER reflect that Plaintiff has filed a motion in his pending civil

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action in the Central District of Illinois, Smith v. Maloney, et al., Case No. 17-cv-1475,
requesting a continuance and other relief due to the unavailability of his legal property. Similar
relief would presumably be available in his pending appeals, if necessary. And as to the new
case Plaintiff intends to bring in the Central District of Illinois, the fact that Plaintiff was able to
file this action demonstrates that he has the ability to file a complaint elsewhere, even if it may
not contain all the details that he could include if he had full access to his legal property. The
request/motion for emergency injunction (Doc. 2) is therefore DENIED.
Because this Order makes it clear to Plaintiff that he has “struck out,” he would be well
advised to consider whether he would be entitled to proceed IFP in a new lawsuit, or whether he
wishes to incur the obligation to pay a new filing fee in advance, given the hurdle he now must
surmount in 28 U.S.C. § 1915(g). Plaintiff is FURTHER ADVISED that if he files a new case
or seeks leave to proceed IFP without disclosing his litigation history, including his three strikes,
he may be subject to sanctions including the dismissal of the case.
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.

Judge Herndon
2018.02.15
08:33:11 -06'00'

IT IS SO ORDERED.

______________________________
United States District Judge

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