Cunningham v. Keefer
Filing
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OPINION AND ORDER: DENYING 3 MOTION for Leave to Proceed in forma pauperis; this cause of action is DISMISSED WITHOUT PREJUDICE; Travis Scott Cunningham, IDOC # 156774, is ORDERED to pay (and the facility having custody of him to automatically re mit) to the clerk of this court 20% of the money he receives for each calendar month during which he receives $10.00 or more, until the $400.00 filing fee is paid in full; the clerk of court is DIRECTED to return, unfiled, any papers filed in any case by or on behalf of Travis Scott Cunningham (except for a notice of appeal or unless filed in a criminal or habeas corpus proceeding) until he has paid in full all outstanding fees and sanctions in all civil actions in any federal court; the clerk is ORDERED to note any attempted filings in violation of this order on the docket of Case No. 3:16-cv-477; and the clerk is DIRECTED to ensure that a copy of this order is mailed to each facility where the plaintiff is housed until the filing fee has been paid in full. Signed by Chief Judge Philip P Simon on 8/18/2016. (lhc)(cc: Plaintiff and Westville Correctional Facility)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
TRAVIS SCOTT CUNNINGHAM,
Plaintiff,
vs.
LONNIE KEEFER,
Defendant.
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Cause No. 3:16-cv-453
OPINION AND ORDER
Travis Scott Cunningham, a pro se prisoner, filed a complaint and a petition to
proceed without paying the filing fee. (DE 1; DE 2.) Cunningham is a litigious fellow,
and he has pursued most of his litigation in forma pauperis. Under 28 U.S.C. § 1915(g), an
inmate may not proceed in forma pauperis if he has filed a complaint or appeal that
frivolous, malicious, or did not state a claim upon which relief could be granted on
three or more prior occasions. This is referred to as the “three-strikes rule.”
Cunningham has accumulated at least four strikes. See Cunningham v. Maughmer, No.
3:11-cv-483 (N.D. Ind., Dec. 16, 2011); Cunningham v. Maughmer, 3:12-cv-002 (N.D. Ind.,
Jan. 4, 2012); Cunningham v. Indiana, 3:13-cv-118 (N.D. Ind., Feb. 21, 2013); Cunningham v.
Maughmer, 3:13-cv-161 (N.D. Ind., March 4, 2013). Although there is an exception to the
three-strikes rule for inmates who are in imminent danger of serious physical injury,
Cunningham doesn’t fit the bill. See Abdul-Wadood v. Nathan, 91 F.3d 1023, 1025 (7th Cir.
1996). He claims that he was illegally extradited from Florida to Indiana in March 2015,
but “[a]llegations of past harm do not suffice[.].” See Ciarpaglini v. Saini, 352 F.3d 328,
330 (7th Cir. 2003) (internal citation omitted). As a result, Cunningham cannot proceed
with this case without paying the filing fee in full.
Cunningham knows that he is restricted from proceeding in forma pauperis
because he was told at least twice before filing this case. See Cunningham v. Logansport
Police Department, No. 3:13-cv-244 (N.D. Ind. Apr. 3, 2013) (DE 2); Cunningham v. Sheriff,
No. 3:13-cv-357 (N.D. Ind., May 1, 2013) (DE 2). Nevertheless, he filed an in forma
pauperis petition.(DE 3.) The Seventh Circuit has spoken plainly about what happens
when a litigant seeks leave to proceed in forma pauperis after being told that he is
restricted:
Litigants to whom § 1915(g) applies take heed! An effort to
bamboozle the court by seeking permission to proceed in forma
pauperis after a federal judge has held that § 1915(g) applies . . .
will lead to immediate termination of the suit. Moreover, the fee
remains due, and, [as] we held in Newlin v. Helman, 123 F.3d 429,
436-37 (7th Cir. 1997), . . . unpaid docket fees incurred by litigants
subject to § 1915(g) lead straight to an order forbidding further
litigation.
Sloan v. Lesza, 181 F.3d 857, 859 (7th Cir. 1999) (dismissing appeal and ordering clerk not
to file future documents until defendant pays outstanding fees and sanctions in all civil
actions).
For these reasons, this case will be dismissed, the filing fee assessed, and
Cunningham will continue to be restricted until he has paid in full all outstanding filing
fees and sanctions imposed by any federal court. The restriction imposed by this order
does not prohibit Cunningham from filing a notice of appeal in this case nor “impede
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him from making any filings necessary to protect him from imprisonment or other
confinement, but . . . [it does] not let him file any paper in any other suit . . . until he
pays the money he owes.” Support Sys. Int’l v. Mack, 45 F.3d 185, 186 (7th Cir. 1995).
Finally, I note that Cunningham has been restricted from filing several lawsuits
without paying the filing fee in the past two weeks. See Cunningham v. Boonstra, 3:16-cv447 (N.D. Ind. Aug. 5, 2016) (DE 5); Cunningham v. Indiana, No. 3:16-cv-397 (N.D. Ind.
Aug. 8, 2016) (DE 21); Cunningham v. Keefer, No. 3:16-cv-396 (N.D. Ind. Aug. 12, 2016)
(DE 13). While it is important for the clerk of this court to document any attempt
Cunningham makes to violate this order, it is only necessary to do so in one case. The
clerk has already begun making notations in Case No. 3:16-cv-447, so future violations
of this order should be noted in that case, rather than in this one.
Accordingly:
(1) the in forma pauperis petition (DE 3) is DENIED;
(2) this cause of action is DISMISSED WITHOUT PREJUDICE;
(3) Travis Scott Cunningham, IDOC # 156774, is ORDERED to pay (and the
facility having custody of him to automatically remit) to the clerk of this court
20 percent of the money he receives for each calendar month during which he receives
$10.00 or more, until the $400.00 filing fee is paid in full;
(4) the clerk of court is DIRECTED to return, unfiled, any papers filed in any
case by or on behalf of Travis Scott Cunningham (except for a notice of appeal or unless
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filed in a criminal or habeas corpus proceeding) until he has paid in full all outstanding
fees and sanctions in all civil actions in any federal court;
(5) the clerk is ORDERED to note any attempted filings in violation of this order
on the docket of Case No. 3:16-cv-477; and
(6) the clerk is DIRECTED to ensure that a copy of this order is mailed to each
facility where the plaintiff is housed until the filing fee has been paid in full.
SO ORDERED.
ENTERED: August 18, 2016.
s/ Philip P. Simon
CHIEF JUDGE
UNITED STATES DISTRICT COURT
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