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Bowers v. Abele

United States District Court, E.D. Wisconsin

May 8, 2018

DAVID ELIJAH BOWERS, JR., Plaintiff,
v.
CHRIS ABELE, et al., Defendants.

          ORDER GRANTING THE PLAINTIFF'S MOTION FOR REINSTATEMENT OF CIVIL COMPLAINT AND MOTION TO AMEND (DKT. NO. 7), DENYING THE PLAINTIFF'S MOTION FOR LEAVE TO PROCEED WITHOUT PREPAYMENT OF THE FILING FEE (DKT. NO. 8), AND DENYING THE PLAINTIFF'S MOTION TO CONSOLIDATE CASES (DKT. NO. 10)

          HON. PAMELA PEPPER, United States District Judge.

         On June 7, 2017, plaintiff David Elijah Bowers, Jr., a Wisconsin state prisoner who is representing himself, filed a document entitled “(Basic Complaint) For the Office of ~ ~ ~ (Human Rights Protocol).” Dkt. No. 1. The complaint contains allegations about the plaintiff's “illegal” placement and improper treatment at the Milwaukee County Behavioral Health Division. Id. The day the plaintiff filed the complaint, the Clerk of Court sent him a letter requesting that within twenty-one days, he submit either the $400.00 civil case filing fee or a motion for leave to proceed without prepayment of the filing fee. Dkt. No. 2. The plaintiff did neither. Therefore, on July 21, 2017, the court dismissed the case for failure to diligently prosecute. Dkt. No. 3. The court noted that within twenty-one days of the date of the order, the plaintiff could ask the court to reinstate the case. Id. at 3.

         On August 8, 2017, the court received from the plaintiff a “request to reinstate civil complaint and proposed amended complaint.” Dkt. No. 5. The plaintiff did not attach to that motion a proposed amended complaint; instead, the motion listed several allegations that he wanted to add to the original complaint. Id. That same day-August 8, 2017-the court also received from the plaintiff a “request to proceed without prepaying the full filing fee.” Dkt. No. 6.

         On September 18, 2017 (about a month later), the court received from the plaintiff another “motion for reinstatement of civil complaint and motion to amend” and another motion for leave to proceed without prepayment of the filing fee. Dkt. Nos. 7-8. A month after that, on October 18, 2017, the plaintiff filed a motion to consolidate cases. Dkt. No. 10. This order resolves the pending motions.

         I. THE PLAINTIFF'S MOTION FOR REINSTATEMENT OF CIVIL COMPLAINT

         The plaintiff asks to reinstate his civil complaint because, he says, he never received the Clerk of Court's June 6, 2017 letter directing him to either pay the $400.00 civil case filing fee or file a motion for leave to proceed without prepaying the filing fee. Dkt. No. 7 at 3. The plaintiff explains that as soon as he received the court's dismissal order, he filed a request to reinstate and a request to proceed without prepayment of the filing fee. Id. at 4. The court indicated in its dismissal order that the plaintiff could petition for reinstatement within twenty-one days of the order, and the plaintiff's motion met that deadline. Accordingly, the court will grant his motion for reinstatement of civil complaint.

         II. THE PLAINTIFF'S MOTION FOR LEAVE TO PROCEED WITHOUT PREPAYMENT OF THE FILING FEE

         The Prison Litigation Reform Act (“PLRA”) applies to this case because the plaintiff was incarcerated when he filed the complaint. 28 U.S.C. §1915. Under the PLRA, a prisoner may not proceed without prepaying the filing fee 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 case 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)).

         Court records show that the plaintiff has accumulated at least three strikes, including: (1) Bowers v. McGinnis, No. 08-cv-888 (E.D. Wis., Griesbach, J.) (dismissed for failure to state a claim on October 27, 2008); (2) Bowers v. Thurmer, No. 10-cv-63 (E.D. Wis., Stadtmueller, J.) (dismissed as frivolous on October 6, 2010); and (3) Bowers v. Husz, No. 09-1711 (7th Cir.) (appeal dismissed as frivolous on June 16, 2009). The court must deny the plaintiff's motion for leave to proceed without prepayment of the filing fee.[1]

         If the plaintiff wants to proceed with this case, he must pay the full civil case filing fee of $400.00 (the $350.00 filing fee and the $50.00 administrative fee that applies to litigants who haven't been given permission to proceed without prepaying the filing fee) within fourteen days of this order-that is, by the end of the day on May 22, 2018. 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). The court will dismiss this case without further notice or hearing if it does not receive the $400 filing fee by the end of the day on Monday, May 22, 2018. Newlin, 123 F.3d at 434.

         III. THE PLAINTIFF'S MOTION TO AMEND

         The plaintiff's motion to reinstate the complaint also included in the caption the words “And Motion to Amend.” Dkt. No. 7 at 1. In the original complaint, the plaintiff named County Executive Chris Abele and Milwaukee Police Chief Ed Flynn[2] as defendants. Dkt. No. 1 at 1. He named those same two defendants in his August 8, 2017 motion to reinstate. Dkt. No. 5. His September 18, 2017 motion to reinstate, however, adds “John Doe Police Officer, ” and also includes the Latin term “et al., ” at the end of the list of defendants in the caption. Dkt. No. 7 at 1. “Et al., ” loosely translated, means “among others, ” but it is not clear from the motion who those ...


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