Titus Henderson v. Rick Raemisch et al

Filing 2

Order on ifp request: Petitioner ineligible for ifp pursuant to 28 U.S.C. 1915(g). Full filing fee required. Fee due by 4/22/2009. (elc),(ps)

IN THE UNITED STATES DISTRICT COURT FO R THE WESTERN DISTRICT OF WISCONSIN --------------------------------------------T IT U S HENDERSON, ORDER Petitioner, 0 9 - cv -1 7 0 - b b c v. R I C K RAEMISCH, PETER HUIBREGTSE, G A R Y BOUGHTON, ELLEN RAY, T O M GOZINSKI, WELCOME ROSE, A M Y SMITH, HELLEN KENNEBECK, K AT H R Y N ANDERSON, LARRY PRIMMER, JA N A JUERGENS, MONICA HORNER, T RIS H A LANSING, NANCY SALMON, EL LEN RAY, C. BEERKIRCHER, T H O M A S TAYLOR, DAVID GARDNER, L T . BOISEN, BRIAN KOOL, TIM HAINES, C RA IG TOM, LT. HANFIELD, JOSH BROWN, H . BROWN, W. BROWN, SGT. FURER, C O NEIS, SGT. CARPENTER, S G T . BOARDMAN, SGT. BLOYER, C O II JONES, COII JOHNSON, CO HULCE, C O II KARNOPP, R. STARKEY, S G T . WALLACE, COII ECKT, COII EWING, D . ESSER, M. SCULLION, JEROMEY CAYA, JEN N IFER SICKINGER, JOAN WATERMAN, W EN D Y THOMPSON, SGT. TREFT, S G T . COOK and JOHN DOES, R espo nd ents. ---------------------------------------------

Petitioner Titus Henderson, a prisoner at the Wisconsin Secure Program Facility in Boscobel, Wisconsin, has submitted a proposed complaint. He has not paid the $350 fee for filing his complaint. Therefore, I construe his complaint to include a request for leave to pro ceed in forma pauperis. The request will be denied because petitioner does not qualify for in forma pauperis status under 28 U.S.C. § 1915(g). Section 1915(g) reads as follows: In no event shall a prisoner bring a civil action or appeal a judgment in a civil actio n or proceeding under this section if the prisoner has, on 3 or more prior o ccasio n s, 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 g ra n te d, unless the prisoner is under imminent danger of serious physical injury. Petitioner has been aware of his three-strike status for some time. In each of the following cases , this court dismissed at least one claim raised in Henderson's complaints at the screening stage for one of the reasons listed in § 1915(g). See Henderson v. Belfuel, 03-cv72 9-bb c (decided Mar. 16, 2004); Henderson v. Kool, 05-cv-157-bbc (Apr. 25, 2005); H enderso n v. Brush, 06-cv-12-bbc (decided Mar. 6, 2006); and Henderson v. Morris, 06-c40 7-bb c (decided Nov. 14, 2006). Therefore, petitioner cannot proceed in this case unless I find that the complaint alleges that he is in imminent danger of serious physical injury. In order to meet the imminent danger requirement of § 1915(g), the threat or prison condition must be real and proximate. Ciarpaglini v. Saini, 352 F.3d 328, 330 (7th Cir. 20 03 ) (citing Lewis v. Sullivan, 279 F.3d 526, 529 (7th Cir. 2002)). Allegations of past harm do not suffice; the harm must be imminent or occurring at the time the court considers his request for leave to proceed in forma pauperis. See id. (citing Heimermann v. Litscher,

337 F.3d 781 (7th Cir. 2003)). Claims of physical injury ordinarily arise in the context of law suits alleging Eighth Amendment violations. In his 20-page, 118-paragraph complaint, petitioner describes allegations against 48 prison and Department of Corrections employees involving events that occurred at the W isconsin Secure Program Facility over approximately a five and one-half year period. P etitio n er's claims against respondents cover a lengthy list of abuses and include allegations o f retaliation, racial discrimination, denial of due process, cruel and unusual punishment and d en ial of medical treatment. Petitioner's most troubling allegations involve a period of approxim ately eight days during which respondents denied him food and water followed by a period of months in which respondents purportedly gave him contaminated food and m ade verbal threats against him. Although petitioner's allegations are serious in nature it ap pears from his complaint that the events giving rise to this action end in January 2009, w ith prison doctors prescribing medication for petitioner's "psychological and physical injuries." Because petitioner does not allege that he was in imminent danger of serious physical injury at the time he filed this lawsuit (March 23, 2009), his complaint is not a com plaint requiring application of the exception to § 1915(g). B ecause petitioner is disqualified from proceeding in forma pauperis under § 1915(g), h e may choose to pursue this case as a paying litigant. If so, he must submit a check or m on ey order made payable to the clerk of court in the amount of $350. If he does this, h o w e v e r , petitioner should be aware that the court then will be required to screen his com plaint under 28 U.S.C. § 1915A, and dismiss his case if the complaint is frivolous, m alicious, fails to state a claim upon which relief may be granted or seeks monetary relief

from a defendant who is immune from such relief. If petitioner does not make the $350 paym ent by April 22, 2009, I will consider that he does not want to pursue this action. In that event, the clerk of court is directed to close this file.

ORDER IT IS ORDERED that petitioner Titus Henderson's request for leave to proceed in form a pauperis is DENIED because petitioner is ineligible for in forma pauperis status under 28 U.S.C. § 1915(g). Further, IT IS ORDERED that petitioner may have until April 22, 2009, in which to submit a check or money order made payable to the clerk of court in the amount of $350. If, by April 22, 2009, petitioner fails to pay the fee, the clerk of court is directed to close this file. Entered this 1st day of April, 2009. BY THE COURT: /s/ __________________________________ BARBARA B. CRABB District Judge