Grant v. Dane County Jail

Filing 3

Order on leave to proceed. Plaintiff denied leave to proceed in forma pauperis pursuant to 28 U.S.C. 1915(g). Plaintiff's future filings restricted per Mack . Plaintiff may move to modify or rescind this order no earlier than two years f rom date of this order. Plaintiff has until 1/25/2010 to pay the fees owed under Mack or the clerk of court is directed to closed cases 09-cv-727-slc, 09-cv-728-slc, 09-cv-729-slc and 09-cv-735-slc. Signed by Chief Judge Barbara B. Crabb on 1/5/10. (elc),(ps)

IN THE UNITED STATES DISTRICT COURT FO R THE WESTERN DISTRICT OF WISCONSIN --------------------------------------------JA M ES EDWARD GRANT, O PIN IO N and ORDER Plaintiff, 0 9 -c v -7 2 7 -s lc 1 v. D A N E COUNTY JAIL, D efendan t. --------------------------------------------JA M ES EDWARD GRANT, O PIN IO N and ORDER Plaintiff, 0 9 -c v -7 2 8 -s lc v. JO S E PH E. MIMIER, ADA, D efendan t. --------------------------------------------JA M ES EDWARD GRANT, O PIN IO N and ORDER

While this court has a judicial vacancy, it is assigning 50% of its caseload autom atically to Magistrate Judge Stephen Crocker. For the purpose of issuing this order I am assuming jurisdiction over these cases. 1

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P l a i n t i ff , 0 9 -c v -7 2 9 -s lc v. C IR C U IT COURT OF DANE COUNTY, D efendan t. --------------------------------------------JA M ES EDWARD GRANT, O PIN IO N and ORDER Plaintiff, 0 9 -c v -7 3 5 -s lc v. D E PA RT M E N T OF CORRECTIONS, D efendan t. --------------------------------------------P lain tiff James Edward Grant, a prisoner at the Dane County jail in Madison, W iscon sin, has filed proposed complaints for money damages in the four actions listed above. Also, he has asked for leave to proceed in forma pauperis in each of the cases, but he has not provided a trust fund account statement that this court needs in order to calculate an initial partial payment of his filing fees for these actions. Usually the court would wait un til payment of the initial partial payments to rule on plaintiff's requests for leave to pro ceed in forma pauperis. However, plaintiff has earned three strikes for bringing earlier actions that were frivolous, malicious or failed to state a claim upon which relief could be

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gran ted . Therefore I will deny his requests for leave to proceed in forma pauperis in each of these cases because he does not qualify for in forma pauperis status under 28 U.S.C. § 1 9 1 5(g). Also, I will enter an order under Support Systems International, Inc. v. Mack, 45 F.3d 185 (7th Cir. 1995), restricting plaintiff from filing papers in this court until he pays the filing fees he owes for his numerous frivolous lawsuits and appeals. 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 granted, unless the prisoner is under imminent danger of serious physical injury. On at least three prior occasions, I denied plaintiff leave to proceed in forma pauperis in law s uits that were legally frivolous. Grant v. Barth, 08-cv-669-slc, decided January 8, 2008; G ran t v. Robinson, 08-cv-689-slc, decided January 9, 2008; and Grant v. Zeigler, 08-685-slc, decided January 15, 2008. Therefore, plaintiff cannot proceed in any of these cases 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 28 U.S.C. § 1915(g), the threat o r prison condition must be real and proximate. Ciarpaglini v. Saini, 352 F.3d 328, 330 (7 th Cir. 2003) (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 3

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 con text of lawsuits alleging Eighth Amendment violations. Plaintiff's complaints in these cases do not allege facts from which an inference may be drawn that he is under imminent danger of serious physical injury. In these complaints he alleges as follows: C ase no. 09-cv-727-slc -- Plaintiff sues the Dane County jail for the disappearance of his brief in another case and the failure to investigate a March 2009 incident of excessive force. C ase nos. 09-cv-728-slc and 09-cv-729-slc -- In almost identical complaints, plaintiff su es an assistant district attorney and the Circuit Court for Dane County for disregarding a letter filed in plaintiff's criminal cases. C a se no. 09-cv-735-slc -- Plaintiff sues the Wisconsin Department of Corrections for b arrin g him from having contact with Tonya Baron. Because plaintiff's complaints do not allege facts from which an inference may be d raw n that he is under imminent danger of serious physical injury, he is disqualified from pro ceeding in forma pauperis under § 1915(g) in each case. P lain tiff may choose to pursue these cases as a paying litigant, but he has a significant hurdle to overcome before doing so. I must address the fact that despite having struck out 4

under § 1915(g), plaintiff continues to submit complaint after complaint to this court that does not contain allegations of imminent danger. The purpose of § 1915(g) is to curb friv o lous filings by prisoners, but this provision has not stymied plaintiff, who not only continues to file complaints (18 in the last 13 months), but has also filed at least 14 letters or other miscellaneous filings with this court over the last six months. Only one of plaintiff's cases has made it past the screening stage with allegations of imminent danger. When given the choice to pay the $350 filing fee in order to continue with his non-imminent danger cases, plaintiff has always failed to pay the full fee (he has paid only $51.21 thus far for his 14 cases), but has then followed up with new complaints that do not comply with § 1915(g). Further, plaintiff has not paid any of his nine $455 appellate filing fees. Plaintiff's repeated frivo lo us filings waste judicial resources and make it harder for persons with legitimate claims to obtain a speedy resolution of their lawsuits. Under Support Systems International, Inc. v. Mack, 45 F.3d 185 (7th Cir. 1995), I w ill order the clerk of court to return unfiled plaintiff's filings in pending and future cases u ntil he has paid the $10,343.79 he owes for his cases before this court and the court of app eals. The clerk will retain an electronic copy of the documents plaintiff attempts to file, but the court will take no further action on those documents. There are some exceptions to the filing bar: plaintiff may still file applications for a writ of habeas corpus or documents in any criminal case in which he is a defendant. In addition, this court will consider 5

co m plaints in which plaintiff alleges he is in imminent danger of serious physical harm. Am m on s v. Hannula, No. 08-cv-608-bbc, slip op. at 13-16 (W.D. Wis. Nov. 5, 2008). H ow ever, as a means of avoiding additional waste of court resources responding to frivolous co m p lain ts containing only the magic words "imminent danger" rather than allegations passing muster under § 1915(g), any further complaints alleging imminent danger filed by plaintiff will be deemed dismissed after 30 days unless the court orders otherwise. Alexander v. United States, 121 F.3d 312, 315 (7th Cir. 1997). This order will expire when plaintiff p ays the amount due. Plaintiff may file a motion to modify or rescind this Mack order no earlier than two years from the date of this order. As stated above, this order applies to plaintiff's pending cases (the above-captioned four cases as well as case no. 09-cv-585-slc), which means that the normal schedule continues w ith the cases even though plaintiff must pay what he owes before he may file anything in these cases. In re City of Chicago, 500 F.3d 582 (7th Cir. 2007). In the four cases at issue, I will give plaintiff a deadline of January 25, 2010, to choose to continue litigating these cases as a paying litigant. Usually, plaintiff would have to pay only the $350 filing fee in order to proceed with any of these cases as a paying litigant, but because I have issued a M ack order against plaintiff, he will have to pay the entire $10,343.79 he owes before he m ay proceed with any of these cases. If he does this, he should be aware that the court then w ill be required to screen his complaints under 28 U.S.C. § 1915A, and dismiss any case if 6

the complaint is frivolous, malicious, 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 he fails to pay w hat he owes by January 25, 2010, the clerk of court is directed to close each of these cases.

OR DER IT IS ORDERED that 1. Plaintiff James Edward Grant's requests for leave to proceed in forma pauperis in each of these cases is DENIED because he is ineligible for in forma pauperis status under 28 U .S.C . § 1915(g). 2. The clerk of court is directed to make an electronic copy of any papers submitted either directly or indirectly by or on behalf of James Edward Grant in any pending or future case in this court and to return the paper copies to plaintiff. The court will take no action on any of the proposed suits until plaintiff pays in full all filing fees from all of his federal suits, with the following exceptions: criminal cases, applications for writs of habeas corpus and cases in which plaintiff alleges he is in imminent danger of serious physical harm. Although complaints in which plaintiff alleges imminent danger will be filed, they will be deem ed dismissed after 30 days unless the court orders otherwise. 3. Plaintiff is authorized to submit to this court a motion to modify or rescind this M ack order no earlier than two years from the date of this order. 7

4. Plaintiff may have until January 25, 2010, to pay what he owes under the Mack ord er. If he fails to do so, the clerk of court is directed to close each of these cases. E n tered this 5t h day of January, 2010. B Y THE COURT: /s/ _ _ _ __ _ _ __ _ _ __ _ _ __ _ _ __ _ _ __ _ _ __ _ _ __ _ B AR B AR A B. CRABB D istrict Judge

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