Smith v. La Du-Ives et al

Filing 6

ORDER signed by Judge Pamela Pepper on 4/26/2017 DENYING 2 Plaintiff's motion for leave to proceed without prepayment of the filing fee. The court ORDERS that the plaintiff must prepay the $400 filing fee in this case in time for the cle rk's office to receive it by the end of the day on 5/12/2017. If the court does not receive the $400 filing fee by 5/12/2017, the court will dismiss this case without prejudice and without further notice. (cc: all counsel; by US Mail to plaintiff) (pwm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
______________________________________________________________________________
DERRICK L. SMITH,
Plaintiff,
v.

Case No. 17-cv-513-pp

SANDRA LA DU-IVES, et al.,
Defendants.
______________________________________________________________________________
DECISION AND ORDER REQUIRING PLAINTIFF TO
PAY $400 FILING FEE BY MAY 12, 2017
______________________________________________________________________________
The plaintiff is currently incarcerated at Dodge Correctional Institution.
On March 20, 2017, while incarcerated at Marathon County Jail, the plaintiff
wrote a complaint under 42 U.S.C. §1983, alleging that the defendants were
violating his civil rights. Dkt. No. 1. That same day, the plaintiff wrote a motion
for leave to proceed without prepayment of the filing fee. Dkt. No. 2. The court
received and docketed these filings on April 10, 2017.
The Prison Litigation Reform Act applies to this action because the
plaintiff was incarcerated when he filed his complaint. 28 U.S.C. §1915. That
law allows a court to give an incarcerated plaintiff the opportunity to proceed
with his lawsuit without prepaying the full case filing fee, as long as he meets
certain conditions. One of those conditions is a requirement that the plaintiff
pay an initial partial filing fee. 28 U.S.C. §1915(b). Once the plaintiff pays the
initial partial filing fee, the court may allow the plaintiff to pay the balance of
the filing fee over time, through deductions from his prisoner account. Id.
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That said, if a prisoner has already filed more than three actions or
appeals that were dismissed as frivolous or malicious or for failure to state a
claim upon which relief can be granted, the prisoner will be required to prepay
the entire $400 filing fee, unless the prisoner is in imminent danger of serious
physical injury. 28 U.S.C. § 1915(g). Commonly known as the “three-strikes”
provision, a prisoner is said to have struck out once he has accrued three
dismissals under this rule.
The plaintiff has struck out. He has had far more than three strikes
assessed to him over the years. See e.g., Smith v. Gleason, et al., Nos. 12-cv633, 12-cv-741, 12-cv-742, 12-cv-743, 12-cv-952, 12-cv-953, 12-cv-954, 13cv-387, 13-cv-591, 13-cv-644, 13-cv-645, 13-cv-646, 13-cv-647, 13-cv-658,
13-cv-670, 13-cv-671, 2013 WL 6238488, at *8 (W.D. Wis. Nov. 27, 2013)
(finding that the plaintiff had struck out, his conduct was “vexatious,” and
warning him to “proceed with care when considering whether to pursue his
many lawsuits”) (internal quotation marks omitted); see also Certification as to
Three or More Dismissals, Dkt. No. 1-3 (listing eleven federal lawsuits in which
the plaintiff received a strike).
Accordingly, the plaintiff will be allowed to proceed without prepaying the
full filing fee only if he can establish that he is in imminent danger of serious
physical injury. 28 U.S.C. §1915(g). In making this determination, the Seventh
Circuit Court of Appeals has cautioned courts not to evaluate the seriousness
of a plaintiff’s claims. Ciarpaglini v. Saini, 352 F.3d 328, 330 (7th Cir. 2002).
However, “it has never been the rule that courts must blindly accept a
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prisoner’s allegations of imminent danger.” Taylor v. Watkins, 623 F.3d 483,
485 (7th Cir. 2010). Courts routinely deny requests to proceed without
prepaying the full filing fee when the imminent danger allegations are
“conclusory or ridiculous,” or where they concern only past injuries. Id.
(quoting Ciarpaglini, 352 F.3d at 330-31.) In short, “The ‘imminent danger’
exception to §1915(g)’s ‘three strikes’ rule is available ‘for genuine emergencies,’
where ‘time is pressing’ and ‘a threat . . . is real and proximate.” Heimermann
v. Litscher, 337 F.3d 781, 782 (7th Cir. 2003) (quoting Lewis v. Sullivan, 279
F.3d 526, 531 (7th Cir. 2002).
The plaintiff alleges that the defendants, all of whom work at the
Marathon County Jail, are harassing him in retaliation for his filing numerous
complaints and lawsuits, are failing to give him prompt and adequate medical
care, and are interfering with his access to the courts. Dkt. No. 1 at 4; see also
Plaintiff’s Declaration in Support of Lawsuit, Dkt. No. 30.
According to the Wisconsin Department of Corrections website, Marathon
County Jail notified the Wisconsin DOC that the plaintiff was in their custody
on March 24, 2017 (four days after the plaintiff dated his complaint but more
than two weeks before the court received the complaint). See
http://offender.doc.state.wi.us/lop/ (last visited April 25, 2017). The plaintiff
was then transferred from Marathon County Jail to Dodge Correctional
Institution on March 28, 2017 (more than a week before the court received the
complaint).

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Because the plaintiff is no longer at the Marathon County Jail, there is
no threat that the mistreatment the plaintiff alleges he suffered at the hands of
the Marathon County Jail staff will continue. With the plaintiff’s transfer from a
county jail to a state institution, the alleged harm is no longer on-going but is
now a past injury, and courts must deny requests to proceed without
prepaying the filing fee when a prisoners allegations concern only past injuries.
In light of the foregoing, the court finds that the plaintiff has failed to
show he is in imminent danger of serious physical injury. The court will deny
the plaintiff’s motion to proceed without prepayment of the filing fee (dkt. no.
2). To proceed in this action, the plaintiff must prepay the $400 filing fee.
The court ORDERS that the plaintiff’s motion to proceed without
prepayment of the filing fee (dkt. no. 2) is DENIED.
The court further orders that the plaintiff must prepay the $400 filing fee
in this action by May 12, 2017. The court cautions the plaintiff that if he fails
to pay the filing fee, the court will dismiss this action without prejudice and
without further notice to the plaintiff.
Dated in Milwaukee, Wisconsin this 26th day of April, 2017.

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