United States District Court, E.D. Wisconsin
WILLIAM C. GRIESBACH, CHIEF JUDGE UNITED STATES DISTRICT
Ronald Lema Kupsky, who is incarcerated at Waupun
Correctional Institution and representing himself, filed a
complaint under 42 U.S.C. § 1983, alleging that his
civil rights were violated. Kupsky also filed a motion for
leave to proceed without prepayment of the filing fee (in
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). 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 both before
and after the enactment of the PLRA.” Evans v. Ill.
Dep't of Corr., 150 F.3d 810, 811 (7th Cir. 1998)
(citing Abdul-Wadood v. Nathan, 91 F.3d 1023, 1025
(7th Cir. 1996)).
records indicate that Kupsky has accumulated at least three
strikes, including: (1) Kupsky v. McLaren, No.
18-CV-0385-WCG (E.D. Wis.), dismissed at screening for
failure to state a claim; (2) Kupsky v. Blintz, No.
18-CV-0585-WCG (E.D. Wis.), dismissed at screening for
failure to state a claim; (3) Kupsky v. Outagamie
County, No. 18-CV-0757-LA (E.D. Wis.), dismissed at
screening for failure to state a claim and on absolute
immunity grounds; (4) Kupsky v. McLaren, USCA No.
18-2270 (7th Cir.), affirmed district court's dismissal
for failure to state a claim and assessed an additional
strike; and (5) Kupsky v. Outagamie County, USCA No.
18-2958 (7th Cir.), affirmed district court's dismissal
on absolute immunity grounds and assessed an additional
strike. Because Kupsky has previously filed at least three
actions that were dismissed as frivolous, malicious, or for
failure to state a claim, the court will deny his motion for
leave to proceed without prepayment of the filing fee unless
he is under imminent danger of serious physical injury.
order 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 the complaint is
filed, and the threat or prison condition causing the
physical injury 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); Heimermann v. Litscher, 337 F.3d 781 (7th
Cir. 2003)). “Allegations of past harm do not
suffice” to show imminent danger. Id.
Generally, 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).
asserts that, in December 2018, he had his family order him a
publication entitled So I'm a Spider - So What?,
which he claims is part of a book series recommended for ages
13-18. He alleges that he received notice on December 28,
2018, that he would not be allowed to have the book because
of its content. While not clear from his complaint, Kupsky
appears to allege that the defendants denied him access to
the book because it contained “nude/scantily clad
clothing in it, ” ECF No. 1 at 3, which Kupsky denies.
Kupsky then filed an inmate complaint; the January 14, 2019
response to his complaint reiterated that he would not be
allowed to have the book. He claims that his First Amendment
rights were violated and that he was denied equal protection
of the laws because another inmate has the same book. These
allegations do not meet the imminent danger requirement, as
Kupsky does not allege an ongoing or imminent serious
physical injury. Accordingly, Kupsky's motion for leave
to proceed without prepayment of the filing fee will be
fact that this court is denying Kupsky's request to
proceed without prepayment of the filing fee means that the
full 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) is due 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).
Kupsky pays the full filing fee within 14 days, the court
will screen his complaint under 28 U.S.C. § 1915A.
Failure to pay in full within the time limit will result in
dismissal of this case. Newlin, 123 F.3d at 434.
IS THEREFORE ORDERED that Kupsky's motion for
leave to proceed without prepayment of the filing fee (ECF
No. 2) is DENIED.
IS FURTHER ORDERED that Kupsky 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. Kupsky's failure to
comply with this order will result in dismissal of this case.
IS FURTHER ORDERED that copies of this order be sent
to the warden of the ...