United States District Court, E.D. Wisconsin
NATE A. LINDELL, Plaintiff,
ANTHONY MELI, et al., Defendants.
WILLIAM E. DUFFIN, U.S. MAGISTRATE JUDGE.
Nate A. Lindell, a state prisoner who is representing
himself, filed a complaint under 42 U.S.C. § 1983. On
March 26, 2019, U.S. District Judge Lynn Adelman screened the
complaint and granted Lindell's motion for leave to
proceed without prepaying the filing fee (in forma
pauperis). (ECF No. 22.) On the same day, the case was
referred to Magistrate Judge David Jones for pretrial
proceedings. (ECF No. 23.) Judge Jones subsequently granted
Lindell's motion for leave to amend the complaint. (ECF
No. 26.) Lindell is proceeding on claims that (1) defendants
Meli, O'Donovan and Searls retaliated against him for
filing a PREA complaint; and (2) defendants Meli and
O'Donovan violated his due process rights related to a
disciplinary hearing. (ECF No. 36 at 5-6.) He is also
proceeding on a claim for injunctive relief against defendant
Carr. (Id. at 6.) On September 24, 2019, the case
was referred to this court for pretrial case management.
defendants have filed a motion to dismiss this case under 28
U.S.C. § 1915(g) unless Lindell pays the full filing
fee. (ECF No. 65.) The defendants contend that Lindell
incurred four strikes before filing this case. (ECF No. 65 at
2.) Under the Prison Litigation Reform Act (PLRA), a prisoner
may not bring a civil action or appeal a civil judgment
in forma pauperis,
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). The defendants identify two
district court actions, one appeal, and one petition for a
writ of certiorari to the United States Supreme Court in
which Lindell purportedly incurred “strikes.”
(ECF No. 65 at 2-4.) The court construes the defendants'
motion as a motion to revoke Lindell's in forma
Lindell v. Pollard, Case No. 19-cv-255-LA-WED (E.D.
Wis.), this court issued an order on January 13, 2020,
granting the defendants' motion to revoke Lindell's
motion to proceed without prepaying the filing fee (in
forma pauperis) because he has incurred the four strikes
described above. The court adopts the reasoning set forth in
that order and determines that Lindell has incurred strikes
in the following cases:
Strikes 1 and 2: Lindell v.
Huibregtse, Case No. 05-C-3-BBC (W.D. Wis.) (court of
appeals amended judgment to dismiss with prejudice all claims
as frivolous or malicious on October 31, 2006); Lindell
v. Huibregtse, 205 Fed.Appx. 446, 450 (7th Cir. 2006)
(appeal dismissed as frivolous on October 31, 2006).
Strike 3: Lindell v. Esser, Case
No. 13-cv-563-WMC (W.D. Wis.) (case dismissed for failure to
state a claim on April 1, 2015).
Strike 4: Lindell v. Huibregtse,
549 U.S. 1336 (2007) (petition for certiorari dismissed as
frivolous or malicious on April 16, 2007).
has incurred four strikes and is not under imminent danger of
serious physical injury. Thus, § 1915(g) bars him from
proceeding without prepaying the full filing fee (in
forma pauperis). The court will revoke Lindell's
in forma pauperis status and direct him to pay the
balance of the $400 filing fee. If Lindell does not pay the
rest of the filing fee, the court will recommend that this
case be dismissed.
Motion to Compel and Request for Mediation
filed a letter requesting the court to compel counsel for
defendants to replace Lindell's lost/stolen documents and
to promptly respond to Lindell's discovery requests. (ECF
No. 64 at 3.) He also requests that the court schedule this
case for mediation. (Id.) The defendants contend
that Lindell's motion to compel should be denied because
it does not include a certification that he conferred with
them, as required by Fed.R.Civ.P. 37(a) and Civil L.R. 37.
(ECF No. 68 at 1.) The defendants also clarify that they
responded to Lindell's discovery requests and that they
checked with prison staff regarding whether they were holding
Lindell's legal property and learned that the prison is
not holding Lindell's property.
court will deny Lindell's motion to compel because the
defendants state that they have responded to his discovery
requests and because Lindell did not certify that he
consulted with the defendants before filing his motion.
IT IS ORDERED that Lindell's motion to compel