United States District Court, E.D. Wisconsin
CRAIG L. MILLER, Plaintiff,
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)
PAMELA PEPPER UNITED STATES DISTRICT JUDGE.
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
Motion to Proceed Without Prepaying the Filing Fee (Dkt. No.
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.
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)).
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).
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).
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
Screening the Plaintiff's Complaint (Dkt. No. 1)
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).
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).
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)).
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