Simpson v. Walker et al

Filing 32

ORDER signed by Judge Rudolph T. Randa on 9/2/2015. 4 Plaintiff's MOTION to proceed under the 28 U.S.C. § 1915(g) imminent danger exception DENIED; 6 Plaintiff's MOTION for Leave to Proceed in forma pauperis DENIED. Plaintiff to pay $400 filing fee within 14 days; failure to comply will result in dismissal of case. (cc: all counsel, via mail to Willie Simpson and Warden at Waupun Correctional Institution; PLRA Attorney at 7th Circuit)(cb)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
WILLIE C. SIMPSON,
Plaintiff,
-vs-

Case No. 15-CV-186

SCOTT WALKER,
WILLIAM POLLARD, and
EDWARD F. WALL,
Defendants.

DECISION AND ORDER
The plaintiff, Willie C. Simpson, a state prisoner, filed a pro se
complaint under 42 U.S.C. § 1983, alleging that his civil rights were
violated. This matter comes before the Court on a number of motions filed
by the plaintiff and for screening of the plaintiff’s complaint.
The plaintiff filed a motion for leave to proceed in forma pauperis,
along with a certified copy of his prison trust account statement. Based on
that information, the Court determined that the prisoner lacked the funds
to pay an initial partial filing fee. 28 U.S.C. § 1915(b)(4).
Under the Prison Litigation Reform Act (PLRA), a prisoner may not
bring a civil action or appeal a civil judgment in forma pauperis,
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). When determining whether a prisoner has acquired
three “strikes” under § 1915(g), courts must consider prisoner actions
dismissed on any of the three enumerated grounds both before and after
the enactment of the PLRA. Evans v. Ill. Dep’t of Corrs., 150 F.3d 810, 811
(7th Cir. 1998).
There has been some confusion over the years regarding whether
the plaintiff has accumulated three strikes. This is due in part to the
clarification of the law in Turley v. Gaetz, 625 F.3d 1005, 1012 (7th Cir.
2010), that “a strike is incurred under § 1915(g) when an inmate’s case is
dismissed in its entirety based on the grounds listed in § 1915(g).”
(emphasis in original).
At this point, though, the plaintiff has accumulated more than three
strikes. They include: (1) Simpson v. Walker, No. 14-CV-198 (E.D. Wis.,
Griesbach, J.) (dismissed for failure to state a claim); (2) Simpson v.
Haines, No. 13-2146 (7th Cir. Oct. 25, 2013) (appeal dismissed as frivolous);
and (3) Simpson v Kingston, No. 04-C-298 (W.D. Wis., Crabb, J.) (case
dismissed with prejudice, strike assessed).
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Because the plaintiff has

previously filed at least three actions which were dismissed as frivolous,
malicious, or for failure to state a claim, his motion to leave to proceed in
forma pauperis will be denied unless he is under imminent danger of
serious physical injury.
In order to meet the imminent danger requirement of 28 U.S.C.
§ 1915(g), a plaintiff must allege a physical injury that is imminent or
occurring at the time the complaint is filed, and the threat or prison
condition causing the physical injury must be real and proximate.
Ciarpaglini v. Saini, 352 F.3d 328, 330 (7th Cir. 2003) (citing Lewis v.
Sullivan, 279 F.3d 526, 529 (7th Cir. 2002) and Heimermann v. Litscher,
337 F.3d 781 (7th Cir. 2003)).
The plaintiff has included in his complaint allegations of imminent
danger. He also filed a motion for leave to proceed under the 28 U.S.C.
§ 1915(g) imminent danger exception.

However, the imminent danger

exception to § 1915(g)’s “three strikes” rule is available for genuine
emergencies, where time is pressing, the threat is “real and proximate, and
when the potential consequence is ‘serious physical injury’ . . . .” Lewis,
279 F.3d 526, 531 (7th Cir. 2002); see also, Ciarpaglini, 352 F.3d at 330
(holding that a plaintiff’s allegations of a past injury that has not recurred
does not justify in forma pauperis status).
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The plaintiff’s complaint challenges a provision of the Wisconsin
Administrative Code, DOC 303.75, which provides that, “In addition
enforcing this chapter, the department shall work with local law
enforcement and the district attorney so that violations of criminal statutes
may be investigated and appropriately referred for prosecution.”

The

plaintiff names as defendants only the Governor, the Warden, and the
Secretary of the Wisconsin Department of Corrections.
The plaintiff attempts to allege imminent danger by suggesting that
individual guards (acting in concert) at Waupun Correctional Institution
threaten him with physical harm in retaliation for past criminal charges,
have already punched him in the face, and now harass and threaten to
finish him off. While these are serious allegations, they have nothing to do
with the ability of Wisconsin Department of Corrections staff who work
with law enforcement officials to investigate violations of criminal law and
refer those inmates for criminal prosecution.

Because there is no

relationship between the plaintiff’s allegations of imminent danger and the
allegations in his complaint, the Court concludes that the plaintiff is not
under imminent danger of serious physical injury and therefore, may not
proceed in forma pauperis under that exception to 28 U.S.C. § 1915(g).
The plaintiff incurred the filing fee by filing his complaint. Newlin
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v. Helman, 123 F.3d 429, 433-34 (7th Cir. 1997), rev’d on other grounds by,
Walker v. O’Brien, 216 F.3d 626 (7th Cir. 2000) and Lee v. Clinton, 209
F.3d 1025 (7th Cir. 2000). The fact that this Court is denying the request
to proceed in forma pauperis means that the full filing fee of $400.00
($350.00 filing fee and $50.00 administrative fee that applies to litigants
not proceeding in forma pauperis) is due within 14 days of this order. Id.;
7th Cir. R. 3(b). If the plaintiff pays the full filing fee within 14 days, the
Court will screen the plaintiff’s complaint under 28 U.S.C. § 1915A.
Failure to pay in full within the time limits will result in a dismissal of this
case. Newlin, 123 F.3d at 434.
NOW, THEREFORE, BASED ON THE FOREGOING, IT IS
HEREBY ORDERED THAT the plaintiff’s motion to proceed under the
28 U.S.C. § 1915(g) imminent danger exception (ECF No. 4) is DENIED.
IT IS FURTHER ORDERED that the plaintiff’s motion for leave
to proceed in forma pauperis (ECF No. 6) is DENIED.
IT IS FURTHER ORDERED that the plaintiff shall forward to the
clerk of this court the sum of $400.00 as the full filing fee in this case
within 14 days of the date of this order. The plaintiff’s failure to comply
with this order will result in dismissal of this case. The payment shall be
clearly identified by the case name and number assigned to this action.
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IT IS FURTHER ORDERED that copies of this order be sent to
the warden of the institution where the plaintiff is confined and to PLRA
Attorney, United States Court of Appeals for the Seventh Circuit, 219 S.
Dearborn Street, Rm. 2722, Chicago, Illinois 60604.
Dated at Milwaukee, Wisconsin, this 2nd day of September, 2015.
BY THE COURT:

__________________________
HON. RUDOLPH T. RANDA
U.S. District Judge

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