Garner v. Ronson et al

Filing 10

ORDER signed by Judge Lynn Adelman on 03/17/2018. IT IS ORDERED that plaintiffs motion for leave to proceed without prepayment of the filing fee 4 is DENIED. Plaintiff shall forward to the clerk of this court the sum of $400.00 as the full fil ing fee in this case within 14 days of the date of this order. The payment shall be clearly identified by the case name and number assigned to this action. Plaintiffs failure to comply with this order will result in dismissal of this case. IT IS OR DERED that plaintiffs motion for extension of time 5 is DENIED as unnecessary. IT IS ORDERED that plaintiffs motion for leave to file an amended complaint 8 is DENIED as unnecessary. IT IS ORDERED that plaintiffs motion to use funds from his release account to pay the initial partial filing fee 9 is DENIED. IT IS ORDERED that copies of this order be sent to the officer in charge of the agency where plaintiff is confined. (cc: all counsel, plaintiff, warden, financial) (lls)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
OSCAR GARNER,
Plaintiff,
v.

Case No. 18-C-003

NP RONSON, et al.,
Defendants.
______________________________________________________________________
ORDER
This matter comes before me on several pending motions: (1) plaintiff’s motion
for leave to proceed without prepayment of the filing fee; (2) plaintiff’s motion for
extension of time to submit his trust fund activity sheet; (3) plaintiff’s motion for leave to
file an amended complaint; and (4) plaintiff’s motion to use funds from his release
account to pay the initial partial filing fee. Docket Nos. 4-5, 8-9.
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). “Strikes” include any prisoner action dismissed on any of the three
enumerated grounds before or after the enactment of the PLRA. Evans v. Ill. Dep’t of
Corrs., 150 F.3d 810, 811 (7th Cir. 1998) (citing Abdul–Wadood v. Nathan, 91 F.3d
1023, 1025 (7th Cir. 1996)).

Court records show that plaintiff has accumulated three strikes, including: (1)
Garner v. Hill, case no. 17-cv-0051-LA (E.D. Wis.); (2) Garner v. Kirby, case no. 14-cv545-JDP (W.D. Wis.); (3) and Garner v. Huibregtse, case. no. 09-cv-301 (W.D. Wis.).
Therefore, plaintiff cannot proceed in forma pauperis unless he can establish that he is
in imminent danger of serious physical injury. 28 U.S.C. §1915(g).
Plaintiff states that he is in “imminent danger” because he has not received
adequate medical treatment for his sinus problems (either seasonal allergies or chronic
sinusitis), his headaches, his breathing problems, and his nosebleeds. He also
complains about foul smells from a drain and an inadequate ventilation system. Plaintiff
details the numerous requests he sent to the Health Services Unit (“HSU”) and the
Warden regarding the issues. He received responses on these issues, including: being
scheduled for medical appointments, receiving prescription medication, contacting a
plumber, and checking/vacuuming the ventilation system.
Plaintiff appears to disagree with the way the institution handled his complaints
but that does not establish that he is in imminent danger of serious physical injury. 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). HSU is responding to plaintiff’s medical requests and
he has access to medical care. Further, prison staff have been investigating and
attempting to fix complaints regarding the drain and ventilation system. As a result,
plaintiff is not in imminent danger of serious physical injury, and I will deny plaintiff’s
motion for leave to proceed without prepayment of the filing fee.
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Because plaintiff cannot proceed with this lawsuit based on payment of an initial
partial filing fee, his motion to use his release account to pay the initial partial filing fee is
moot. Therefore, I will also deny his motion to use his release account to pay the initial
partial filing fee on appeal.
If plaintiff wants to proceed with this action, he must pay the full civil case filing
fee of $400.00 (the sum of the $350.00 filing fee and the $50.00 administrative fee that
applies to litigants not proceeding in forma pauperis) within 14 days of this order.
Newlin 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); 7th Cir. R. 3(b). Failure to pay in full within the time limits will result in
dismissal of this case. Newlin, 123 F.3d at 434. Once plaintiff pays, I will screen his
complaint under 28 U.S.C. § 1915A.
Regarding his other motions, plaintiff may amend his complaint once as a matter
of course without the court’s permission because the complaint has not yet been served
on defendants. See Fed. R. Civ. P. 15(a)(1)(A). Further, plaintiff submitted his trust fund
activity sheet several days after he filed his motion for extension of time to file the trust
fund activity sheet. Docket No. 6. Therefore, I will deny both motions as unnecessary.
For the reasons stated, IT IS ORDERED that plaintiff’s motion for leave to
proceed without prepayment of the filing fee (Docket No. 4) is DENIED. 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 payment shall be clearly identified by the
case name and number assigned to this action. Plaintiff’s failure to comply with this
order will result in dismissal of this case.
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IT IS ORDERED that plaintiff’s motion for extension of time (Docket No. 5) is
DENIED as unnecessary.
IT IS ORDERED that plaintiff’s motion for leave to file an amended complaint
(Docket No. 8) is DENIED as unnecessary.
IT IS ORDERED that plaintiff’s motion to use funds from his release account to
pay the initial partial filing fee (Docket No 9) is DENIED.
IT IS ORDERED that copies of this order be sent to the officer in charge of the
agency where plaintiff is confined.
Dated at Milwaukee, Wisconsin, this 17th day of March, 2018.

s/Lynn Adelman _______
LYNN ADELMAN
United States District Judge

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