United States District Court, E.D. Wisconsin
ADELMAN United States District Judge.
matter comes before me on several pending motions: (1)
plaintiff's motion for leave to proceed without
prepayment of the filing fee; (2) plaintiff's motion for
extension of time to submit his trust fund activity sheet;
(3) plaintiff's motion for leave to file an amended
complaint; and (4) plaintiff's motion to use funds from
his release account to pay the initial partial filing fee.
Docket Nos. 4-5, 8-9.
the Prison Litigation Reform Act (PLRA), 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). “Strikes” include any
prisoner action dismissed on any of the three enumerated
grounds before or after the enactment of the PLRA. Evans
v. Ill. Dep't of Corrs., 150 F.3d 810, 811 (7th Cir.
1998) (citing Abdul-Wadood v. Nathan, 91 F.3d 1023,
1025 (7th Cir. 1996)).
records show that plaintiff has accumulated three strikes,
including: (1) Garner v. Hill, No. 17-cv-0051-LA
(E.D. Wis.); (2) Garner v. Kirby, No. 14-cv-545-JDP
(W.D. Wis.); (3) and Garner v. Huibregtse, case. no.
09-cv-301 (W.D. Wis.). Therefore, plaintiff cannot proceed
in forma pauperis unless he can establish that he is
in imminent danger of serious physical injury. 28 U.S.C.
states that he is in “imminent danger” because he
has not received adequate medical treatment for his sinus
problems (either seasonal allergies or chronic sinusitis),
his headaches, his breathing problems, and his nosebleeds. He
also complains about foul smells from a drain and an
inadequate ventilation system. Plaintiff details the numerous
requests he sent to the Health Services Unit
(“HSU”) and the Warden regarding the issues. He
received responses on these issues, including: being
scheduled for medical appointments, receiving prescription
medication, contacting a plumber, and checking/vacuuming the
appears to disagree with the way the institution handled his
complaints but that does not establish that he is in imminent
danger of serious physical injury. 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). HSU is
responding to plaintiff's medical requests and he has
access to medical care. Further, prison staff have been
investigating and attempting to fix complaints regarding the
drain and ventilation system. As a result, plaintiff is not
in imminent danger of serious physical injury, and I will
deny plaintiff's motion for leave to proceed without
prepayment of the filing fee.
plaintiff cannot proceed with this lawsuit based on payment
of an initial partial filing fee, his motion to use his
release account to pay the initial partial filing fee is
moot. Therefore, I will also deny his motion to use his
release account to pay the initial partial filing fee on
plaintiff wants to proceed with this action, he must pay the
full civil case filing fee of $400.00 (the sum of the $350.00
filing fee and the $50.00 administrative fee that applies to
litigants not proceeding in forma pauperis) within
14 days of this order. Newlin v.
Helman, 123 F.3d 429, 433-34 (7th Cir. 1997),
rev'd on other grounds by Walker v. O'Brien,
216 F.3d 626 (7th Cir. 2000) and Lee v. Clinton, 209
F.3d 1025 (7th Cir. 2000); 7th Cir. R. 3(b). Failure to pay
in full within the time limits will result in dismissal of
this case. Newlin, 123 F.3d at 434. Once plaintiff
pays, I will screen his complaint under 28 U.S.C. §
his other motions, plaintiff may amend his complaint once as
a matter of course without the court's permission because
the complaint has not yet been served on defendants.
See Fed. R. Civ. P. 15(a)(1)(A). Further, plaintiff
submitted his trust fund activity sheet several days after he
filed his motion for extension of time to file the trust fund
activity sheet. Docket No. 6. Therefore, I will deny both
motions as unnecessary.
reasons stated, IT IS ORDERED that
plaintiff's motion for leave to proceed without
prepayment of the filing fee (Docket No. 4) is
DENIED. Plaintiff shall forward to the clerk
of this court the sum of $400.00 as the full filing fee in
this case within 14 days of the date of this
order. The payment shall be clearly identified by the case
name and number assigned to this action. Plaintiff's
failure to comply with this order will result in dismissal of
IS ORDERED that plaintiff's motion for extension
of time (Docket No. 5) is DENIED as
IS ORDERED that plaintiff's motion for leave to
file an amended complaint (Docket ...