United States District Court, E.D. Wisconsin
DERRICK L. SMITH, Plaintiff,
SANDRA LA DU-IVES, et al., Defendants.
AND ORDER DENYING THE PLAINTIFF'S MOTION TO RECONSIDER
ITS ORDER DENYING HIS MOTION TO PROCEED WITHOUT PREPAYING THE
FILING FEE (DKT. NO. 9), DENYING AS MOOT HIS EXTENSION OF
TIME TO SUBMIT HIS TRUST ACCOUNT STATEMENT (DKT. NO. 7), AND
REQUIRING PLAINTIFF TO PAY $400 FILING FEE IN TIME FOR THE
COURT TO RECEIVE IT BY JUNE 9, 2017
PAMELA PEPPER United States District Judge
plaintiff currently is incarcerated at the Waupun
Correctional Institution. On April 10, the court received a
complaint, in which the plaintiff alleged that the defendants
(staff at the Marathon County Jail) were violating his civil
rights in violation of 42 U.S.C. §1983. Dkt. No. 1. That
same day, the court received from the plaintiff a motion for
leave to proceed without prepayment of the filing fee. Dkt.
No. 2. The plaintiff had signed these documents on March 20,
April 26, 2017, the court denied the plaintiff's motion
to proceed without prepaying the filing fee. Dkt. No. 6. The
court explained that the plaintiff's lawsuit was subject
to the Prisoner Litigation Reform Act (PLRA), which requires
that a prisoner who has had three or more cases dismissed as
frivolous or malicious or for failure to state a claim to
prepay the entire $400 filing fee, unless the prisoner is in
imminent danger of serious physical injury. 28 U.S.C.
§1915(g). The court concluded that the plaintiff had
three strikes, and that he was not in imminent danger of
serious physical injury because he had been transferred from
the Marathon County Jail to Dodge Correctional Institution
before the court received his complaint. Id. The
court ordered the plaintiff to pay the $400 filing fee by May
12, 2017. Id.
8, 2017, the court received from the plaintiff a motion for
reconsideration of the court's order requiring him to pay
the full filing fee. Dkt. No. 9. The crux of the
plaintiff's argument is that the court was incorrect to
base its decision on whether the plaintiff was in imminent
danger at the time the court received his complaint. Dkt.
Nos. 10, 11. The plaintiff argues that the court should have
based its decision on whether the plaintiff was in imminent
danger at the time he filed his complaint.
Id. (Under the prison mailbox rule, a prisoner's
document is deemed filed at the moment the prisoner puts the
document in the prison mail system, rather than when the
document arrives at the court. Taylor v. Brown, 787
F.3d 851, 859 (7th Cir. 2015)).
the court agrees that courts generally should make the
imminent harm determination as of the time the plaintiff
filed the complaint, the court disagrees that the prison
mailbox rule should apply in these unusual circumstances.
Here, the plaintiff was transferred from a county jail to a
state institution between the time he filed his complaint and
the time the court received it. By the time the court
received the complaint, the plaintiff no longer was in
imminent danger from the defendants at the Marathon County
Jail, because he was no longer there.
using the term imminent, Congress indicated that it wanted to
include a safety valve for the three strikes rule to prevent
impending harms . . . .” Knox v. Benefield,
Case No. 07-cv-795, 2008 WL 3992692, at *1 (S.D. Ill. Aug.
21, 2008) (quoting Abdul-Akbar v. McKelvie, 239 F.3d
307, 315 (3rd Cir. 2001)). In other words, while the
overarching goal of the PLRA is to prevent prisoners from
abusing the judicial system, Congress wanted to ensure that
even those prisoners who had abused the system in the past
could access the court when they were in danger of a
“real and proximate” threat.
the alleged threat to the plaintiff was gone by the time the
court received the complaint. While the plaintiff tries to
argue that he still suffers lingering effects from the
alleged misconduct, that fact is irrelevant to whether the
threat is likely to continue. The court concluded there was
no threat to the plaintiff because none of the defendants had
any access to the plaintiff by the time the court received
his complaint. That has not changed.
however, does not end the court's inquiry. The plaintiff
has brought to the court's attention the fact that he has
three pending criminal cases in Marathon County (Case Nos.
17CF148, 16CF1207, and 14CF101, all charges described as
“Battery by Prisoners”). Dkt. No. 9 at 2. The
plaintiff argues that, given these pending cases, he is
certain to have to return to the Marathon County Jail in
order to attend hearings and/or trials in the Marathon County
Circuit Court. Dkt. No. 9 at 2. In fact, according to the
dockets for these cases, there are status conferences set in
each of them on June 6, 2017. See
https://wcca.wicourts.gov (last visited May 10, 2017).
possible that the plaintiff will have to return to the
Marathon County Jail. Therefore, the court must go beyond its
initial finding that the plaintiff has suffered only past
harm that cannot recur, and must consider whether his
allegations show that he will be in imminent danger of
serious physical injury should he return to the Marathon
County Jail. The court finds that he will not.
the plaintiff's allegations focus on the Jail staff's
confiscation of his legal materials, their allegedly unfair
discipline, and the Jail management's refusal to respond
to his many inmate complaints. See, e.g., dkt. no.
3, ¶¶3, 4, 5, 12, 13, 14, 20, 25, 27 and 32. The
plaintiff does not alleged that he would face imminent danger
of serious physical harm should he return to the
Jail. In the complaint, the plaintiff raises only two
categories of allegations that could possibly lead the court
to such a conclusion: 1) that officers at the Jail are
creating an environment that encourages inmates to attack and
harass the plaintiff; and 2) that medical staff at the Jail
refuse to treat his serious medical needs. The court will
discuss each in turn.
the plaintiff alleges in his declaration that “jail
staff is continuing to develop and foster a hostile
environment against him by antagonizing or rewarding inmates
to attack him.” Dkt. No. 3 at ¶34. In support of
this allegation, the plaintiff describes situations where
inmates attacked him, but only he was disciplined.
See, e.g., id. at ¶¶9,
37. The plaintiff is suggesting that because he was
disciplined for altercations with other inmates, while the
other inmates were not,  the jail staff must have been
encouraging other inmates to attack him. The court will not
make the leap of logic that the plaintiff's theory
court has had the opportunity to review many of the
plaintiff's previous lawsuits (against different
officials at other institutions), and a recurring theme he
raises is that jail and/or prison officials are conspiring to
cause him harm, often by turning a blind eye to the threat
posed by other inmates.
Seventh Circuit Court of Appeals has held that a district
court is entitled to draw upon its familiarity with a
plaintiff's prior meritless litigation, and that,
“when making the determination of plausibility, a court
may rely upon judicial experience and common sense.”
Walton v. Walker, 364 Fed.Appx. 256, 258 (7th Cir.
2010). Here, in light of all the information before
the court, the court concludes that the plaintiff's
conclusory allegations that Marathon County Jail officials
are encouraging other inmates to attack him are not