Frohwerk v. Buss et al
Filing
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OPINION AND ORDER striking 35 Order of 4/11/11, granting the Plaintiff in forma pauperis status (2) Pursuant to 28 U.S.C. § 1915(g), DENIES the Plaintiff leave to proceed in forma pauperis; (3) AFFORDS the Plaintiff to and including September 26, 2011, within which to pay the $350.00 filing fee. Signed by Chief Judge Philip P Simon on 8/23/11. cc:pltf(kjp)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
DAVID FROHWERK,
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Plaintiff,
vs.
EDWIN G. BUSS, et al.,
Defendants.
CAUSE NO. 2:11-CV-70-PS-APR
OPINION AND ORDER
Plaintiff David Frohwerk, a prisoner confined at the Westville Correctional Facility
(“WCF”), filed a complaint (DE 1) pursuant to 42 U.S.C. § 1983, and a petition to proceed in
forma pauperis. The Court struck the original complaint (DE 109), and the Plaintiff has now
filed an amended complaint (DE 115). On April 4, 2011, the Court granted the Plaintiff leave to
proceed in forma pauperis pursuant to 28 U.S.C. § 1915(b) (DE 35), which allows prisoners to
pay the filing fee over time by installments.
A prisoner may not bring a civil action in forma pauperis if he has “on three 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 was 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). This is commonly known as the “three
strikes” provision.
At the time that this Court issued its April 4, 2011 order granting the Plaintiff leave to
proceed in forma pauperis, it was unaware that Mr. Frohwerk had already accumulated three
strikes before he filed the complaint in this case. But the records of the United States District
Court for the Northern District of Indiana establish that the disposition of three cases filed by
Mr. Frohwerk in 2008 and 2009 qualify as “strikes” within the meaning of §1915(g):
(1) David R. Frohwerk v. Diana M. Brinckley, 3:08-CV-578 JVB,
dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) on February 11, 2009, for
failure to state a claim upon which relief can be granted;
(2) David R. Frohwerk v. Diana M. Brinckley, 3:09-CV-161 RM,
dismissed pursuant to Fed. R. Civ. P. 12(h)(3) on July 15, 2009, for want of
subject matter jurisdiction;
(3) David R. Frohwerk v. Correctional Medical Services, 3:09-CV-317
RM, dismissed pursuant to 28 U.S.C. § 1915A(b) on September 1, 2009, for
failure to state a claim upon which relief can be granted;
An inmate with three or more “strikes” “can use the partial prepayment option in §
1915(b) only if in the future he ‘is under imminent danger of serious physical injury.’” AbdulWadood v. Nathan, 91 F.3d 1023, 1025 (7th Cir. 1996). “In order to meet the imminent danger
requirement of 28 U.S.C. § 1915(g), the ‘threat or prison conditions [must be] real and
proximate.’ Allegations of past harm do not suffice; the harm must be imminent or occurring at
the time the complaint is filed.” Ciarpaglini v. Saini, 352 F.3d 328, 330 (7th Cir. 2003), citing
Lewis v. Sullivan, 279 F.3d 526, 529 (7th Cir. 2002). When inmates “allege only a past injury
that has not recurred, courts deny them leave to proceed IFP.” Id. at 330, citing Abdul-Akbar v.
McKelvie, 239 F.3d 307 (3rd Cir. 2001) (being sprayed with pepper spray once does not
constitute imminent danger) and Abdul-Wadood v. Nathan, 91 F.3d 1023 (7th Cir. 1996) (being
given Ibuprofen instead of something stronger for injury, now healed, is not imminent danger).
Mr. Frohwerk’s amended complaint in this case alleges that he “was placed in
segregation on 1-31-2011" and that he was not given extra clothing or blankets to keep warm
until February 4, 2011 (DE 115 at 15). Mr. Frohwerk is no longer confined in the segregation
unit where he complains he was subjected to conditions he alleges violated the Eighth
Amendment’s prohibition against cruel and unusual punishments. These allegations do not
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suggest any possibility of current imminent danger of serious physical harm to the Plaintiff.
Because he has accumulated three strikes and is not in imminent danger of serious
physical injury, the Court must deny the Plaintiff leave to proceed in forma pauperis. Mr.
Frohwerk may still proceed with this action, but to do so he must pay the full amount of the
filing fee.
For the foregoing reasons, the court:
(1) RECONSIDERS the order granting the Plaintiff in forma pauperis status and
STRIKES the order of April 4, 2011, (DE 35), which granted the Plaintiff leave to proceed in
forma pauperis pursuant to 28 U.S.C. § 1915(b);
(2) Pursuant to 28 U.S.C. § 1915(g), DENIES the Plaintiff leave to proceed in forma
pauperis;
(3) AFFORDS the Plaintiff to and including September 26, 2011, within which to pay
the $350.00 filing fee, and
(4) ADVISES the Plaintiff that if he does not pay the filing fee in full by that date, this
complaint will be dismissed without further notice without affecting his obligation to pay the
remainder of the filing fee in installments.
SO ORDERED.
ENTERED: August 23, 2011
/s/ Philip P. Simon
PHILIP P. SIMON, CHIEF JUDGE
UNITED STATES DISTRICT COURT
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