United States District Court, E.D. Wisconsin
DERRICK L. SMITH, Plaintiff,
SANDRA LA DU-IVES, et al., Defendants.
DECISION AND ORDER REQUIRING PLAINTIFF TO PAY $400
FILING FEE BY MAY 12, 2017
PAMELA PEPPER United States District Judge
plaintiff is currently incarcerated at Dodge Correctional
Institution. On March 20, 2017, while incarcerated at
Marathon County Jail, the plaintiff wrote a complaint under
42 U.S.C. §1983, alleging that the defendants were
violating his civil rights. Dkt. No. 1. That same day, the
plaintiff wrote a motion for leave to proceed without
prepayment of the filing fee. Dkt. No. 2. The court received
and docketed these filings on April 10, 2017.
Prison Litigation Reform Act applies to this action because
the plaintiff was incarcerated when he filed his complaint.
28 U.S.C. §1915. That law allows a court to give an
incarcerated plaintiff the opportunity to proceed with his
lawsuit without prepaying the full case filing fee, as long
as he meets certain conditions. One of those conditions is a
requirement that the plaintiff pay an initial partial filing
fee. 28 U.S.C. §1915(b). Once the plaintiff pays the
initial partial filing fee, the court may allow the plaintiff
to pay the balance of the filing fee over time, through
deductions from his prisoner account. Id.
said, if a prisoner has already filed more than three actions
or appeals that were dismissed as frivolous or malicious or
for failure to state a claim upon which relief can be
granted, the prisoner will be required to prepay the entire
$400 filing fee, unless the prisoner is in imminent danger of
serious physical injury. 28 U.S.C. § 1915(g). Commonly
known as the “three-strikes” provision, a
prisoner is said to have struck out once he has accrued three
dismissals under this rule.
plaintiff has struck out. He has had far more than three
strikes assessed to him over the years. See e.g., Smith
v. Gleason, et al., Nos. 12-cv-633, 12-cv-741,
12-cv-742, 12-cv-743, 12-cv-952, 12-cv-953, 12-cv-954,
13-cv-387, 13-cv-591, 13-cv-644, 13-cv-645, 13-cv-646,
13-cv-647, 13-cv-658, 13-cv-670, 13-cv-671, 2013 WL 6238488,
at *8 (W.D. Wis. Nov. 27, 2013) (finding that the plaintiff
had struck out, his conduct was “vexatious, ” and
warning him to “proceed with care when considering
whether to pursue his many lawsuits”) (internal
quotation marks omitted); see also Certification as
to Three or More Dismissals, Dkt. No. 1-3 (listing eleven
federal lawsuits in which the plaintiff received a strike).
the plaintiff will be allowed to proceed without prepaying
the full filing fee only if he can establish that he is in
imminent danger of serious physical injury. 28 U.S.C.
§1915(g). In making this determination, the Seventh
Circuit Court of Appeals has cautioned courts not to evaluate
the seriousness of a plaintiff's claims. Ciarpaglini
v. Saini, 352 F.3d 328, 330 (7th Cir. 2002). However,
“it has never been the rule that courts must blindly
accept a prisoner's allegations of imminent
danger.” Taylor v. Watkins, 623 F.3d 483, 485
(7th Cir. 2010). Courts routinely deny requests to proceed
without prepaying the full filing fee when the imminent
danger allegations are “conclusory or ridiculous,
” or where they concern only past injuries.
Id. (quoting Ciarpaglini, 352 F.3d at
330-31.) In short, “The ‘imminent danger'
exception to §1915(g)'s ‘three strikes'
rule is available ‘for genuine emergencies, ' where
‘time is pressing' and ‘a threat . . . is
real and proximate.” Heimermann v. Litscher,
337 F.3d 781, 782 (7th Cir. 2003) (quoting Lewis v.
Sullivan, 279 F.3d 526, 531 (7th Cir. 2002).
plaintiff alleges that the defendants, all of whom work at
the Marathon County Jail, are harassing him in retaliation
for his filing numerous complaints and lawsuits, are failing
to give him prompt and adequate medical care, and are
interfering with his access to the courts. Dkt. No. 1 at 4;
see also Plaintiff's Declaration in Support of
Lawsuit, Dkt. No. 30.
to the Wisconsin Department of Corrections website, Marathon
County Jail notified the Wisconsin DOC that the plaintiff was
in their custody on March 24, 2017 (four days after the
plaintiff dated his complaint but more than two weeks before
the court received the complaint). See
http://offender.doc.state.wi.us/lop/ (last visited April
25, 2017). The plaintiff was then transferred from Marathon
County Jail to Dodge Correctional Institution on March 28,
2017 (more than a week before the court received the
the plaintiff is no longer at the Marathon County Jail, there
is no threat that the mistreatment the plaintiff alleges he
suffered at the hands of the Marathon County Jail staff will
continue. With the plaintiffs transfer from a county jail to
a state institution, the alleged harm is no longer on-going
but is now a past injury, and courts must deny requests to
proceed without prepaying the filing fee when a prisoners
allegations concern only past injuries.
light of the foregoing, the court finds that the plaintiff
has failed to show he is in imminent danger of serious
physical injury. The court will deny the plaintiffs motion to
proceed without prepayment of the filing fee (dkt. no. 2). To
proceed in this action, the plaintiff must prepay the $400
court ORDERS that the plaintiffs motion to proceed without
prepayment of the filing fee (dkt. no. 2) is DENIED.
court further orders that the plaintiff must prepay the $400
filing fee in this action by May 12, 2017. The court cautions
the plaintiff that if he fails to pay the filing fee, the
court will dismiss this ...