Frohwerk v. Johnson et al

Filing 16

OPINION AND ORDER striking 3 Order on Motion for Leave to Proceed in forma pauperis and DENYING 9 2nd MOTION for Leave to Proceed in forma pauperis accompaniedfiled by David Frohwerk. Filing Fee to be paid by 9/19/2011. Signed by Judge Robert L Miller, Jr on 8/18/11. cc:pltf(kjp)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
DAVID FROHWERK,
Plaintiff
v.
BOBBY JOHNSON, et al.,
Defendants

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CAUSE NO. 2:11-CV-133 RM

OPINION AND ORDER
Plaintiff David Frohwerk, a prisoner confined at the Westville Correctional
Facility (“WCF”), filed a complaint, and an amended complaint, pursuant to 42
U.S.C. § 1983, and a petition to proceed in forma pauperis. On April 14, 2011, the
court granted Mr. Frohwerk leave to proceed in forma pauperis pursuant to 28
U.S.C. § 1915(b), which allows prisoners to pay the filing fee over time by
installments.
A prisoner can’t 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.
When this court issued its April 14, 2011 order granting Mr. Frohwerk leave
to proceed in forma pauperis, it was unaware that he had 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 Federal Rule of Civil Procedure 12(h)(3) on
July 15, 2009, for want of subject matter jurisdiction; and
(3) David R. Frohwerk v. Correctional Medical Services, 3:09CV-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.’” Abdul-Wadood 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

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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 alleges that WCF officials used “false
information . . . to support a conduct report for violation of any federal, state, or
local law . . . [causing him] . . . to be sanctioned and subjected to atypical
conditions of confinement . . . under which I suffered injury in the form of illness.“
(DE 8 at 3). Mr. Frohwerk is no longer confined in the segregation unit where he
complains he was subjected to conditions he alleges made him ill. These
allegations don’t suggest any possibility of current imminent danger of serious
physical harm to the plaintiff.
Because Mr. Frohwerk has accumulated three strikes and isn’t in imminent
danger of serious physical injury, the court must deny him 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, STRIKES the order of June 14, 2011 (DE 3), which granted the
plaintiff leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915(b),
and DENIES the plaintiff’s second motion for leave to proceed in forma
pauperis (DE 9);
(2) AFFORDS the plaintiff to and including September 19, 2011,
within which to pay the $350.00 filing fee, and
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(3) 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 18 , 2011
/s/ Robert L. Miller, Jr.
Judge
United States District Court
cc: D. Frohwerk

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