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Miller v. Smith

United States District Court, E.D. Wisconsin

July 27, 2018

CRAIG L. MILLER, Plaintiff,
v.
JUDY SMITH, ROBERT HUMPHREYS and CAROL STRAKS, Defendants.

          ORDER DENYING PLAINTIFF'S MOTION FOR LEAVE TO PROCEED WITHOUT PREPAYMENT OF THE FILING FEE (DKT. NO. 2) AND SCREENING COMPLAINT (DKT. NO. 1)

          HON. PAMELA PEPPER UNITED STATES DISTRICT JUDGE.

         Craig L. Miller, a state prisoner representing himself, filed a complaint under 42 U.S.C. §1983, alleging that the defendants violated his civil rights. Dkt. No. 1. The plaintiff also filed a motion for leave to proceed without prepayment of the filing fee. Dkt. No. 2. The court will deny the motion to proceed without prepaying the filing fee, and will give the plaintiff the opportunity to amend his complaint.

         I. Motion to Proceed Without Prepaying the Filing Fee (Dkt. No. 2)

         The Prison Litigation Reform Act (PLRA) applies to this case because the plaintiff was in custody when he filed his complaint. 47 U.S.C. §1997e. 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). When determining whether a prisoner has acquired three “strikes” under §1915(g), a court “must consider prisoner actions dismissed on any of the three enumerated grounds-frivolous, malicious, or for failure to state a claim-both before and after the enactment of the PLRA. Evans v Ill. Dept. 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: Miller v. Fiedler, 12-cv-648 (dismissed for failure to state a claim); Miller v. Morgan, 11-cv-309 (dismissed as frivolous); Miller v. Dane Cty. District Attorney's Office, et al., 10-cv-677 (dismissed as frivolous); Miller v. State of Wisconsin, 10-cv-196 (dismissed for failure to state a claim); and Miller v. Morgan, et al., 04-cv-1137 (dismissed as frivolous). Because the plaintiff has collected more than three strikes, the court cannot allow him to proceed without prepaying the filing fee unless he has shown that he “is under imminent danger of serious physical injury.” 28 U.S.C. §1915(g).

         To meet the imminent danger requirement of 28 U.S.C. §1915(g), a plaintiff must allege a physical injury that is imminent or occurring at the time he files his complaint, and must show that the threat or prison condition causing the physical injury is 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); Heimermann v. Litscher, 337 F.3d 781 (7th Cir. 2003)). “Allegations of past harm do not suffice” to show imminent danger. Id. Courts “deny leave to proceed IFP when a prisoner's claims of imminent danger are conclusory or ridiculous.” Id. at 331 (citing Heimerman, 337 F.3d at 782).

         Here, the plaintiff has asserted past harms and conclusory allegations of present prison conditions; he has not satisfied the imminent danger requirement. The plaintiff states that almost six years ago, while he was housed at Oshkosh Correctional Institution, he was sexually assaulted by defendant Carol Straks and that defendant Smith failed to provide him a safe prison environment (presumably he means safe from defendant Straks' actions). Dkt. No. 1 at 2-3. The plaintiff also asserts that at his current institution, Kettle Moraine Correctional Institution, defendant Warden Robert Humphreys has “created/permitted a hostile environment for plaintiff [and] defamed plaintiff's character, as retaliation for plaintiff's filing criminal charges.” Id. at 3. The court will deny the plaintiff's request to proceed without prepaying the filing fee.

         II. Screening the Plaintiff's Complaint (Dkt. No. 1)

         The law requires the court to screen complaints brought by prisoners seeking relief against a governmental entity or officer or employee of a governmental entity. 28 U.S.C. §1915A(a). The court must dismiss a complaint if the prisoner has raised claims that are legally “frivolous or malicious, ” that fail to state a claim upon which the court may grant relief, or that seek monetary relief from a defendant who is immune from that relief. 28 U.S.C. §1915A(b).

         To state a claim, a complaint must contain sufficient factual matter, accepted as true, “that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556). The complaint's allegations “must be enough to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555 (citation omitted).

         To proceed under 42 U.S.C. §1983, a plaintiff must allege that 1) he was deprived of a right secured by the Constitution or laws of the United States; and 2) the deprivation was caused by the defendant acting under color of state law. Buchanan-Moore v. Cty. of Milwaukee, 570 F.3d 824, 827 (7th Cir. 2009) (citing Kramer v. Vill. of N. Fond du Lac, 384 F.3d 856, 861 (7th Cir. 2004)); see also Gomez v. Toledo, 446 U.S. 635, 640 (1980). The court must give a pro se plaintiff's allegations, “however inartfully pleaded, ” a liberal construction. See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)).

         The complaint alleges that between July 7, 2011 and July 25, 2012, defendant Carol Straks, a nurse working at Oshkosh, sexually assaulted the plaintiff on a daily basis. Dkt. No. 1 at 2. The plaintiff alleges that Straks “was permitted free rein” both to assault him and to recruit other inmates to victimize him. Id. The plantiff says that Straks also gave him “narcotic pain pills, ” which caused him to become addicted to opiates and other medications. Id. The plaintiff also says that defendant ...


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