Smith, James v. Malone, Ronald

Filing 2

ORDER that plaintiff James Alfred Smith, Jr. is DENIED leave to proceed in forma pauperis under 28 U.S.C. § 1915(g), and his complaint is DISMISSED under Fed. R. Civ. P. 8. Plaintiff may have until March 5, 2018, to file an amended complaint that complies with Fed. R. Civ. P. 8. Signed by District Judge Barbara B. Crabb on 2/13/2018. (jef),(ps)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
- - - - - - - - - - - - - - - - - - - - - - - - - - - -- - - - - - - - - - - - - - - - - JAMES ALFRED SMITH, JR.,
OPINION and ORDER
Plaintiff,
17-cv-963-bbc
v.
RONALD K. MALONE,
Defendant.
- - - - - - - - - - - - - - - - - - - - - - - - - - - -- - - - - - - - - - - - - - - - - Pro se plaintiff James Alfred Smith, Jr. 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, contending that defendant Ronald K. Malone
has violated his constitutional rights. Plaintiff 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,
Smith v. Pollard, 16-cv-9-slc, dkt. #6 (filed Jan. 6, 2016), and Smith v. Pollard, 16-cv-10-slc,
dkt. #6 (filed Jan. 6, 2016).
As plaintiff is aware from his previous § 1983 actions, any civil action against
government officials filed by plaintiff 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 as

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frivolous, malicious, or for failure to state a claim upon which relief may be granted. The
sole exception to the three-strikes rule is a provision allowing a plaintiff to file if his
pleadings showing that he is in imminent danger of serious physical injury. 28 U.S.C. §
1915(g).
Court records confirm that plaintiff has filed at least three previous civil actions while
imprisoned that were dismissed because they were frivolous or because they failed to state
a claim. Smith v. Frank, 03-cv-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, plaintiff may not proceed with this
action without paying the fees due under 28 U.S.C. § 1915(g), unless he can show that he
is subject to imminent danger of serious physical injury.
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)).
After reviewing plaintiff’s complaint, I conclude that he may not proceed at this time
because his complaint does not allege that he is in imminent danger. In fact, his complaint
is too vague to satisfy the pleading requirements of Federal Rule of Civil Procedure 8.
Therefore, I am dismissing his complaint and giving him an opportunity to file an amended

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complaint that explains his claims more clearly.

OPINION
Plaintiff acknowledges in his complaint that he must plead facts supporting a finding
that he is imminent danger of serious physical injury if he is to be allowed to proceed.
Nonetheless, he has failed to do so. Plaintiff’s complaint is difficult to follow. He includes
numerous allegations about retaliation, health care, physical and sexual assaults, conspiracies,
entrapment, unlawful revocation of his extended supervision and violations of his right to
equal protection and due process. His allegations are vague and confusing, and it is unclear
whether and to what extent he is saying that he is still subject to retaliation, denied medical
care or otherwise being harmed. For example, plaintiff includes allegations about things that
happened years ago, while he was on extended supervision and while at different institutions,
and I can see no way in which these allegations would be relevant to a claim of imminent
danger. Moreover, plaintiff does not clearly connect a claim of imminent danger to his
allegations involving defendant Warden Ronald Malone, the only person named as a
defendant in the caption of plaintiff’s complaint. In short, plaintiff has not clearly identified
any “genuine emergency” or a “real and proximate” threat of serious harm sufficient to
permit him to proceed under § 1915(g). Heimermann, 337 F.3d at 782.
Plaintiff has not shown that he is in imminent danger, so that he could proceed
without paying a filing fee despite having previously brought three suits that were found to
be frivolous. Ordinarily at this stage I would instruct him to submit the $400 filing fee so

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his complaint could be screened under § 1915A. However, because plaintiff’s allegations are
so confusing and vague, I would have to dismiss his complaint immediately under Federal
Rule of Civil Procedure 8 even if he submitted the $400 filing fee.
Under Rule 8, plaintiff is required to provide fair notice of his claims to each
defendant and set out claims that are plausible on their face. Appert v. Morgan Stanley
Dean Witter, Inc., 673 F.3d 609, 622 (7th Cir. 2012); Bausch v. Stryker Corp., 630 F.3d
546, 559 (7th Cir. 2010). Plaintiff’s allegations are too confusing and vague to provide fair
notice of his claims against defendant Malone. Many of his allegations appear unrelated to
each other and do not appear to involve Malone at all. He includes many conclusory
statements and legal conclusions, but does not clearly explain what he thinks Malone has
done to violate his constitutional rights.
Rather than give plaintiff the opportunity to pay the full filing fee, I will give him an
opportunity to file an amended complaint that provides fair notice to defendant of the
claims he is asserting. Plaintiff should draft the amended complaint as if he were telling a
story to people who know nothing about his situation. This means that someone reading
the complaint should be able to answer the following questions:
(1) What is the specific harm about which plaintiff is complaining?
(2) When did the harm occur and who caused it?
(3) Why does plaintiff believe defendant Malone is responsible for plaintiff’s harm?
In other words, what did defendant Malone in particular do that makes him liable
for violating plaintiff’s constitutional rights?

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(4) Why does plaintiff believe he is in imminent danger of serious physical injury?
(5) How does he think the court can help him?
Plaintiff should set forth his allegations in separate, numbered paragraphs using short,
plain and double-spaced sentences. He should eliminate any information that is not related
to his specific claims against defendant Malone.

In particular, plaintiff should avoid

including allegations about harm he suffered at previous institutions or while on extended
supervision, unfairness at his revocation proceeding or at other state court proceedings or
complaints about how this court has handled his prior lawsuits. I cannot perceive of any
reason why such allegations would be relevant to a claim against Warden Malone.
After plaintiff finishes drafting his complaint, he should review the complaint and
consider whether it could be understood by someone who is not familiar with the facts of his
case. If not, he should make necessary changes.
If plaintiff submits an amended complaint by the deadline set forth below, I will
review it. If he does not submit an amended complaint or show good cause why he is unable
to do so, I will dismiss the case because plaintiff has failed to state a claim upon which relief
may be granted.

ORDER
IT IS ORDERED that plaintiff James Alfred Smith, Jr. is DENIED leave to proceed
in forma pauperis under 28 U.S.C. § 1915(g), and his complaint is DISMISSED under Fed.
R. Civ. P. 8. Plaintiff may have until March 5, 2018, to file an amended complaint that

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complies with Fed. R. Civ. P. 8 as explained above.
Entered this 13th day of February, 2018.

BY THE COURT:
/s/
________________________
BARBARA B. CRABB
District Judge

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