United States District Court, E.D. Wisconsin
ADELMAN, United States District Judge
se plaintiff was a prisoner when he filed the complaint on
August 25, 2016. On September 19, 2016, he notified the court
he has been transferred to a halfway house in Milwaukee,
Wisconsin. Plaintiff has filed a complaint under 42 U.S.C.
§ 1983 along with a motion for leave to proceed in
forma pauperis. Because plaintiff was a prisoner when he
filed the complaint, the Prison Litigation Reform Act applies
to this case. See Jaros v. Ill. Dep't of Corr.,
684 F.3d 667, 668 n.1 (7th Cir. 2012) (citing Witzke v.
Femal, 376 F.3d 744, 750 (7th Cir. 2004)).
the Prison Litigation Reform Act, a prisoner may not bring a
civil action or appeal a civil judgment in forma
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.
28 U.S.C. § 1915(g). When determining whether a prisoner
has acquired three “strikes” under §
1915(g), the court must consider prisoner actions dismissed
on any of the three enumerated grounds both before and after
enactment of the PLRA. Evans v. Ill. Dep't of
Corr., 150 F.3d 810, 811 (7th Cir. 1998).
has accumulated three “strikes”: (1) Bowers
v. McGinnis, Case No. 08-cv-888-WCG (E.D. Wis.),
dismissed for failure to state a claim on October 27, 2008;
(2) Bowers v. Husz, Seventh Circuit Case No.
09-1711, dismissed as frivolous on June 16, 2009; and (3)
Bowers v. Thurmer, Case No. 10-cv-63-JPS, dismissed
as frivolous on October 6, 2010. Although plaintiff has three
strikes, he states in his complaint in this case that he is
“in imminent danger.” Thus, the court must
determine whether the plaintiff meets § 1915(g)'s
imminent danger exception.
order to meet the imminent danger requirement of 28 U.S.C.
§ 1915(g), a plaintiff must allege a physical injury
that is imminent or occurring at the time the complaint is
filed, and the threat or prison condition causing the
physical injury 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)
and Heimermann v. Litscher, 337 F.3d 781 (7th Cir.
2003)). Courts deny leave to proceed in forma
pauperis under § 1915(g) when a prisoner alleges
only a past injury that has not recurred. See
Ciarpaglini, 352 F.3d at 330 (citations omitted). In
addition, courts deny leave to proceed in forma
pauperis when a prisoner's claims of imminent danger
are “conclusory or ridiculous.” Id.
(citing Heimermann v. Litscher, 337 F.3d at 782
(contesting one's conviction and complaining of
inadequate protection two years previously is not imminent
danger); Martin v. Shelton, 319 F.3d 1048, 1050 (8th
Cir. 2003) (working in inclement weather twice is not
imminent danger); White v. Colorado, 157 F.3d 1226,
1231 (10th Cir. 1998) (“vague and conclusory”
assertions of withheld medical treatment when prisoner was
seen over 100 times by physician is not imminent danger)).
Section 1915(g) is not used to determine the merits of a
claim, however, because “[t]his would result in a
complicated set of rules about what conditions are serious
enough, all for a simple statutory provision governing when a
prisoner must pay the filing fee for his claim.”
Ciarpaglini, 352 F.3d at 331. Still, a court may
look beyond the allegations of the complaint to determine
whether the plaintiff is in imminent danger. Taylor v.
Watkins, 623 F.3d 483, 485-86 (7th Cir 2010).
was incarcerated at the Wisconsin Secure Program Facility
when he filed the complaint. He alleges that defendants
retaliated against him after he filed federal court documents
by placing him in the “hole.” (Compl. at 3.)
Plaintiff also alleges that correctional officers at the
prison, including defendant Robin Meiklejohn, are recruiting
prisoners “to inflict pain on his person and make
threats to kill him due to his free exercise with the federal
court[.]” (Id.) Plaintiff seeks a “TRO
injunction relief order on defendants” and $1.5 million
in compensatory damages. (Id. at 4.)
the plaintiff has been released from the Wisconsin Secure
Program Facility, he is no longer subject to the imminent
danger that he may have been in while he was in custody
there. Plaintiff's release from that facility also moots
his claim for injunctive relief. See Ciarpaglini,
352 F.3d at 330; see also Koger v. Bryan, 523 F.3d
789, 804 (7th Cir. 2008).
the court finds that plaintiff has incurred three strikes,
and has not demonstrated that he is in imminent danger of
serious physical injury, plaintiff must pay the $400 filing
fee if he wants to proceed. If plaintiff does not pay the
filing fee by October 31, 2016, I will dismiss this case.
THEREFORE, IT IS HEREBY ORDERED plaintiff's motion for
leave to proceed in forma pauperis (Docket 2) is DENIED.
FURTHER ORDERED that plaintiff's motion for order to
produce six-month trust account statement (Docket 7) is
DENIED AS MOOT.
FURTHER ORDERED that plaintiff shall pay the $400 filing fee
to the Clerk of Court by the end of the day on October 31,