Walker v. Wisconsin Department of Corrections et al
Filing
10
DECISION AND ORDER signed by Judge Lynn Adelman on 2/3/16 denying 9 Motion to Vacate. Further ordering that this case is DISMISSED for failure to pay the filing fee. (cc: all counsel, via USPS to plaintiff) (dm)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
TONY D. WALKER,
Plaintiff,
v.
Case No. 15-CV-979
WISCONSIN DEPARTMENT OF CORRECTIONS, et al.,
Defendants.
DECISION AND ORDER
On January 8, 2016, I denied plaintiff’s motion for leave to proceed in forma pauperis
pursuant to 28 U.S.C. § 1915(g). (Dkt. No. 8.) I ordered plaintiff to submit the $400 filing
fee within fourteen days (by January 23, 2016). I advised plaintiff that failure to submit the
full filing fee with fourteen days would result in dismissal of this action.
On January 19, 2016, plaintiff filed a motion to vacate my January 8, 2016, order and
allow him to proceed in forma pauperis.
In this motion, plaintiff disputes the court’s
determination that he has three “strikes.” He contends that he could not have accumulated
two strikes in W alker v. Hamblin, 556 Fed. Appx. 532 (7th Cir. 2014), because the court of
appeals could only impose a single strike in that appeal. However, the court of appeals
determined that plaintiff incurred two strikes in that case: one for filing the Rule 60(b) motion
and a second one for appealing the denial of the motion. Under § 1915(g), a “strike” is
imposed if an inmate brings an “action or appeal” that is dismissed as frivolous, malicious,
or for failure to state a claim. Here, the court of appeals appears to have treated plaintiff’s
filing the Rule 60(b) motion, which made arguments that “could have been, but were not,
raised on appeal,” and which “was an attempt to avoid the deadline for filing a direct
appeal,” as the bringing of an untimely and frivolous appeal. See W alker, 556 Fed. Appx.
at 532. The court then deemed the filing of an appeal from the denial of the frivolous Rule
60(b) motion as the bringing of a second frivolous appeal. The court of appeals thus
imposed two strikes. See Newlin v. Helman,123 F.3d 429, 433 (7th Cir. 1997) (prisoner
may incur two strikes during the same case: one in the district court and one on appeal).
Combining these two frivolous appeals with W alker v. Department of Corrections, Case No.
96-cv-753 (W .D. W is.), which was dismissed for failure to state a claim upon which relief
may be granted, results in three prior occasions in which W alker brought an action or
appeal that was dismissed for one of the specified reasons.
Thus, I did not err in
concluding that W alker may not proceed in forma pauperis in this action.1
Accordingly, I will deny W alker’s motion to vacate my January 6, 2016 order and
dismiss this case because W alker has failed to pay the filing fee within the time allowed.
THEREFORE, IT IS ORDERED that plaintiff’s motion to vacate (Docket No. 9) is
DENIED.
IT IS FURTHER ORDERED that this case is DISMISSED for failure to pay the filing
fee.
Dated at Milwaukee, W isconsin, this 3rd day of February, 2016.
s/ Lynn Adelman
_______________________
LYNN ADELMAN
District Judge
1
I note that Walker has since incurred a fourth strike, in Walker v. Wall, et al., Case
No. 13-cv-0003 (E.D. Wis.), ECF No. 96 (Sept. 9, 2015). However, that strike was not
incurred until after Walker filed the complaint in this action.
2
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