Smith, James v. Thoreson, Niel et al

Filing 6

ORDER denying plaintiff James Smith leave to proceed in forma pauperis under 28 U.S.C. § 1915(g). Plaintiff may have until June 26, 2017, to pay the $400 filing fee to proceed with this action. Signed by Magistrate Judge Stephen L. Crocker on 6/2/2017. (jef),(ps)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
JAMES A. SMITH, JR.,
Plaintiff,

ORDER

v.
17-cv-301-slc
WILLIAM POLLARD, et al.
Defendants.

Plaintiff James Smith is an inmate incarcerated by the Wisconsin Department of
Corrections at the Milwaukee Secure Detention Facility. He filed this proposed civil action
under 42 U.S.C. § 1983, claiming that defendants discriminate against black and minority
offenders by denying them access to treatment programs. The parties consented to magistrate
judge jurisdiction, and on May 1, 2017, this case was reassigned to me. (Dkt. 5.) Smith has not
yet paid the filing fee, but I assume this is because he cannot afford to do so, as he was found
indigent in two recently filed cases, 16-cv-9-slc and 16-cv-10-slc.
As I explained to Smith in his other § 1983 action, however, any civil action against
government officials filed by Smith while he is incarcerated is governed by the Prison Litigation
Reform Act, which imposes certain conditions on the privilege of proceeding without paying the
filing fee. In particular, under the “three-strikes rule” found at 28 U.S.C. § 1915(g), a prisoner
is not allowed to bring a civil action in federal court without first paying the fee, if three or more
of his civil actions or appeals have already been dismissed while imprisoned as frivolous,
malicious, or for failure to state a claim upon which relief may be granted. The sole exception
to the three-strikes rule is if the plaintiff’s pleadings show that he is in imminent danger of
serious physical injury. See 28 U.S.C. § 1915(g).

Court records confirm that Smith has filed at least three previous civil actions while
imprisoned that were dismissed as frivolous or for failure to state a claim. See Smith v. Frank, 03cv-414 (E.D. Wis.) (dismissed for failure to state a claim); Smith v. Frank, 04-cv-489 (E.D. Wis.)
(dismissed as frivolous); Smith v. Frank, 05-cv-476 (E.D. Wis.) (dismissed as frivolous).
Consequently, Smith may not proceed with this action without the prepayment of fees under
28 U.S.C. § 1915(g), unless he shows that he is subject to imminent danger of serious physical
injury.
In order to meet the imminent danger requirement of 28 U.S.C. § 1915(g), the “threat
or prison condition [must be] real and proximate.” Ciarpaglini v. Saini, 352 F.3d 328, 330 (7th
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 complaint is filed.
Ciarpaglini, 352 F.3d at 330 (citing Heimermann v. Litscher, 337 F.3d 781 (7th Cir. 2003)).
Here, Smith’s allegations do not support a finding that he is in imminent danger. He
alleges that he has been denied access to court-ordered anger management programs, in violation
of the Americans with Disabilities Act and his right to equal protection and due process. None
of his allegations support an inference that he is facing imminent danger of serious physical
harm. Because Smith has not shown that he is in imminent danger, he may not proceed with
this action without prepayment of the full $400 filing fee under § 1915(g).

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ORDER
IT IS ORDERED that plaintiff James Smith is DENIED leave to proceed in forma pauperis
under 28 U.S.C. § 1915(g). Plaintiff may have until June 26, 2017, to pay the $400 filing fee
to proceed with this action. After plaintiff pays the $400 fee, his complaint will be screened
under 28 U.S.C. § 1915A. If plaintiff fails to pay the $400 fee by the above deadline, his
complaint will be dismissed.

Entered this 2nd day of June, 2017.
BY THE COURT:
/s/
STEPHEN L. CROCKER
Magistrate Judge

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