Frohwerk v. Unknown Officials of WCU

Filing 12

OPINION AND ORDER RECONSIDERING AND STRIKING 4 Order granting Motion for Leave to Proceed in forma pauperis and DENYING 10 2nd MOTION for Leave to Proceed in forma pauperis. Filing Fee to be paid by 9/1/2011. Signed by Judge Rudy Lozano on 8/9/11. cc: pltf(kjp) Dkt text modified on 8/10/2011 (kjp).

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
DAVID FROHWERK,

)
)
Plaintiff,
)
)
vs.
)
)
UNKNOWN OFFICIALS of WCU, )
)
Defendants.
)

CAUSE NO. 2:11-CV-210

OPINION AND ORDER
This matter is before the Court on the Application to Proceed
Without Prepayment of Fees and Affidavit, filed by Plaintiff, David
Frohwerk, on August 8, 2011 (De #10); and sua sponte to reconsider,
pursuant to 28 U.S.C. § 1915(g), the Court’s order dated June 21,
2011, granting the Plaintiff leave to proceed in forma pauperis.
For the reasons set forth below, the Court RECONSIDERS the order
granting the Plaintiff in forma pauperis status, STRIKES the order
dated June 21, 2011, and DENIES the Plaintiff leave to proceed in
forma pauperis pursuant to 28 U.S.C. § 1915(g).
Plaintiff,

David

Frohwerk,

a

prisoner

confined

at

the

Westville Correctional Facility, filed a complaint pursuant to 42
U.S.C. § 1983, and a petition to proceed in forma pauperis.

On

June 21, 2011, the Court granted the Plaintiff 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 (DE #4).
The Plaintiff has now filed a second motion to proceed in forma

pauperis.
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 June 21, 2011 order
granting the Plaintiff leave to proceed in forma pauperis, it was
unaware that Frohwerk 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, 3:08CV-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, 3:09CV-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
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prepayment option in § 1915(b) only if in the future he ‘is under
imminent danger of serious physical injury.’”
Nathan, 91 F.3d 1023, 1025 (7th Cir. 1996).

Abdul-Wadood v.

Frohwerk’s complaint

in this case deals with the alleged failure of prison officials to
provide him with legal materials to prepare for a hearing in state
court, which does not suggest any possibility of imminent danger of
serious physical harm.
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.

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 June 21, 2011 (DE #4),
which granted the Plaintiff leave to proceed in forma pauperis
pursuant to 28 U.S.C. § 1915(b);
(2) DENIES the Plaintiff’s second petition for leave to
proceed on appeal in forma pauperis (DE #10);
(3) AFFORDS the Plaintiff to and including September 1, 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
3

his

obligation

to

pay

the

remainder of the filing fee in installments.

DATED: August 9, 2011

/S/RUDY LOZANO, Judge
United States District Court

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