Grissom, Terrance v. Luduigson et al

Filing 6

ORDER on ifp request: Initial partial filing fee of $ 0.03 assessed. (Initial partial filing fee due 5/27/2015.) Signed by District Judge James D. Peterson on 5/8/2015. (jef),(ps)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN

TERRANCE GRISSOM,

v.

Plaintiff,

OPINION & ORDER
14-cv-758-jdp

MR. LUDUIGSON and MR. COTTON,
Defendants.

Plaintiff Terrance Grissom is a prisoner in the custody of the Wisconsin Department
of Corrections at the Columbia Correctional Institution. He has submitted a proposed civil
complaint under 42 U.S.C. § 1983, alleging that while he was incarcerated at the Waupun
Correctional Institution, defendant Mr. Luduigson, a clinician for the prison’s psychological
services department, and Mr. Cotton, a fellow inmate, threatened to kill him and urged him
to commit suicide. Plaintiff seeks leave to proceed in forma pauperis, but he has “struck out”
under 28 U.S.C. § 1915(g), which means that he cannot obtain indigent status under § 1915
in any suit he files during the period of his incarceration unless he alleges facts in his
complaint from which an inference may be drawn that he is in imminent danger of serious
physical injury.
After considering plaintiff’s allegations, I conclude that he properly alleges that he was
in imminent danger at the time he filed his complaint. However, before the court may screen
the merits of his claims, plaintiff will have to pay an initial partial payment of the filing fee or
explain why he cannot do so.

ALLEGATIONS OF FACT
Plaintiff Terrance Grissom is currently an inmate housed at the Columbia
Correctional Institution (CCI). However, at all times relevant to the complaint, he was
housed at the Waupun Correctional Institution (WCI). Defendant Mr. Luduigson is a
clinician for the psychological services department at WCI. Defendant Mr. Cotton was a
fellow inmate at WCI.
In late October 2014, both defendants “disturb[ed] the peace” by banging on
plaintiff’s cell door, threatening to harm or kill plaintiff, and taunting him to commit suicide.
Plaintiff suffers from mental illnesses, and these threats caused him to think about
committing acts of self-harm.
Plaintiff’s allegations are somewhat difficult to understand, but I understand him to
be saying that defendants continue to make threats to harm or kill him. Plaintiff also says
that Cotton is threatening to kill various people, including the president of the United States
and members of plaintiff’s family.

ANALYSIS
1.

Imminent danger
Plaintiff seeks leave to proceed in forma pauperis in this case. However, as stated above,

plaintiff has “struck out” under 28 U.S.C. § 1915(g). This provision reads as follows:
In no event shall a prisoner bring a civil action or appeal a judgment in a civil
action or proceeding under this section 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.

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On at least three prior occasions, plaintiff has brought actions that were dismissed because
they were frivolous, malicious, or failed to state a claim upon which relief may be granted.
Grissom v. Rauschenbach, 04-cv-1252 (E.D. Wis. Feb. 9, 2005); Grissom v. Champagne, 04-cv1251 (E.D. Wis. Feb. 9, 2005), Grissom v. Gordon; 04-cv-1249 (E.D. Wis. Feb. 9, 2005).
Therefore, he cannot proceed in forma pauperis in this case unless I find that he has alleged
that he is in imminent danger of serious physical injury.
To meet the imminent danger requirement of 28 U.S.C. § 1915(g), a prisoner must
allege a physical injury that is imminent or occurring at the time the complaint is filed 1 and
show that the threat or prison condition causing the physical injury is real and proximate.
Ciarpaglini v. Saini, 352 F.3d 328, 330 (7th Cir. 2003) (citing Heimermann v. Litscher, 337
F.3d 781 (7th Cir. 2003); Lewis v. Sullivan, 279 F.3d 526, 529 (7th Cir. 2002)). In his
complaint, plaintiff alleges that a prison staff member and a fellow inmate were threatening
to kill him and encouraging him to commit acts of self-harm. At this point, plaintiff’s
allegations are sufficient to meet the “imminent danger” standard. Therefore, plaintiff may
proceed on his claims without prepayment of the $350 filing fee. 2

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This means that plaintiff does not lose the ability to proceed on “imminent danger” claims
by virtue of his transfer from WCI after he filed the complaint, even though he is not
currently facing the harm raised in the complaint.
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Plaintiff was also sanctioned by this court “[g]iven [his] prolific filing history and inability
to conform his pleadings to meet the imminent danger standard.” Grissom v. Kuluike, 14-cv590-jdp, Dkt. 4, at 3 (W.D. Wis. Jan. 12, 2015). Under the terms of the sanction order, until
plaintiff pays off the outstanding fees in his civil cases, the court will return to plaintiff any
proposed complaints that do not contain allegations showing that plaintiff is in imminent
danger of serious physical harm. Id. As reflected in this order, I conclude that plaintiff’s
complaint meets this standard, so the complaint has been opened as a new case rather than
returned to plaintiff.

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2.

Initial partial payment
Although I conclude that plaintiff qualifies to proceed in forma pauperis under the

imminent danger exception to 28 U.S.C. § 1915(g), plaintiff must still make an initial partial
payment of the filing fee before the case can be screened. In addition, plaintiff will have to
pay the remainder of the fee in installments of 20% of the preceding month’s income in
accordance with 28 U.S.C. § 1915(b)(2).
The initial partial payment is calculated by using the method established in § 1915 by
figuring 20% of the greater of the average monthly balance or the average monthly deposits
to the plaintiff’s trust fund account statement. From the account statement plaintiff has
submitted, I calculate his initial partial payment to be $0.03. If plaintiff does not have the
money in his regular account to make the initial partial payment, he will have to arrange with
prison authorities to pay some or all of the assessment from his release account, or respond to
this order explaining why he cannot make this initial payment. This does not mean that
plaintiff is free to ask prison authorities to pay his entire filing fee from his release account.
The only amount plaintiff must pay at this time is the $0.03 initial partial payment. Plaintiff
should show a copy of this order to prison officials to ensure that they are aware that they
should send plaintiff’s initial partial payment to this court.
3.

Request for relief
Finally, although plaintiff’s complaint is somewhat difficult to decipher, I understand

him to be including requests for various forms of relief that the court cannot grant. For
instance, plaintiff asks for a transfer to a mental health facility. However, plaintiff has already
been transferred away from the danger he states he faced at WCI, and to the extent this
request shows that he is concerned about his mental health treatment in the Wisconsin

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prison system, the claims he raises in this case only indirectly relate to the provision of
mental health care. Plaintiff has filed a separate lawsuit about his mental health treatment,
Grissom v. Pollard, 14-cv-808-jdp, so there is no reason to consider his transfer request in the
present case.
Plaintiff also seems to be asking for injunctive relief in the form of defendant Cotton
being prevented from release from prison to protect those he threatens to harm.
Alternatively, plaintiff seems to be asking the court to initiate criminal proceedings against
both defendants Luduigson and Cotton. This court cannot order either of these options.
Plaintiff is free to contact the United States attorney or local district attorney with his
concerns.
Additionally, plaintiff has submitted a letter stating that staff at CCI (where he is
currently being incarcerated) is “trying to kill [him] by imposing [a] mail monitor on [him],”
that the water at WCI and CCI is poisoned by lead, and that his mail was withheld, read, or
tampered with by both WCI and CCI staff. This letter appears to be identical to the letter
docketed in Grissom v. Schwochert, case no. 14-194. My response is the same as in that case: I
cannot take any action on the letter because none of the dangers plaintiff mentions in the
letter relate to his claims in this case against defendants Luduigson and Cotton. If plaintiff
believes that he faces imminent danger of serious harm at CCI, he should file a brand-new
lawsuit about that danger.

IT IS ORDERED that:
1.

ORDER

Plaintiff Terrance Grissom is assessed $0.03 as an initial partial payment of the
$350 fee for filing this case. Plaintiff is to submit a check or money order made

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payable to the clerk of court in the amount of $0.03 or advise the court in
writing why he is not able to submit the assessed amount on or before May 27,
2015.
2.

If plaintiff fails to meet this deadline, he will be held to have withdrawn this
action voluntarily and the case will be closed without prejudice to plaintiff
filing his case at a later date.

Entered May 8, 2015.
BY THE COURT:
/s/
________________________________________
JAMES D. PETERSON
District Judge

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