United States District Court, W.D. Wisconsin
OPINION AND ORDER
BARBARA B. CRABB DISTRICT JUDGE
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.
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 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. §
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.
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)).
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
complaint that explains his claims more clearly.
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.
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 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.
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.
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
(1) What is the specific harm about which plaintiff is
(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