DEFENDANTS' RULE 12(C) MOTION FOR JUDGMENT ON FIRST AFFIRMATIVE DEFENSE — FAILURE TO DISCLOSE PRIOR LITIGATION

PHILIP G. REINHARD, District Judge.

NOW COME the Defendants, SUSAN TUELL, N.P. (incorrectly sued as "DR. TUELL"), IRENE DYER, P.A. (incorrectly sued as "DR. DYER"), JILL WAHL, M.D., and BESSIE DOMINGUEZ, M.D., and move pursuant to Federal Rule of Civil Procedure 12(c) for Judgment on their First Affirmative Defense, Plaintiff's Failure to Disclose Prior Litigation, and in support thereof; state as follow:

I. Introduction

1. On August 4, 2015, Plaintiff filed this action pursuant to 42 U.S.C. § 1983 alleging that the Defendants acted with deliberate indifference to a serious medical condition, in violation of his Eighth Amendment Constitutional Rights. [ECF #1]. In particular, Plaintiff alleged constitutionally deficient medical care in the treatment (or lack thereof) of his hepatitis-C, a shoulder injury, and chronic foot pain. [Id.].

2. In Section IV of Plaintiff's pro se Complaint, Plaintiff was instructed to: "List ALL lawsuits you (and your co-plaintiff's, if any) have filed in any state or federal court (including the Central and Southern Districts of Illinois)." [ECF. #1] (emphasis in the original). Plaintiff then listed two actions pending before the Illinois Court of Claims, 15-cc-3807 and 15-cc-2935. [ECF #1 at pp. 6-7]. Plaintiff did not list any other lawsuits in his Complaint. Plaintiff signed his Complaint under penalty of perjury. [Id. at p. 12].

3. On August 4, 2015, Plaintiff moved to proceed in forma pauperis. [ECF #3].

4. On September 9, 2015, this Court granted Plaintiff's motion to proceed in forma pauperis. [ECF #6]. Pursuant to its statutory duties under 28 U.S.C. § 1915A, the Court screened Plaintiff's Complaint and dismissed it for failing to comply with Federal Rule of Civil Procedure 10(b), but granted Plaintiff leave to file an Amended Complaint. [Id].

5. On September 28, 2015, Plaintiff submitted an Amended Complaint. [ECF #8].

6. On September 30, 2015, pursuant to its statutory duties under 28 U.S.C. § 1915A, the Court screened Plaintiff's Amended Complaint and allowed it to proceed against the Defendants. [ECF #12].

7. In Section III of Plaintiff's Amended Complaint, Plaintiff was instructed to: "List ALL lawsuits you (and your co-plaintiff's, if any) have filed in any state of federal court in the United States." [ECF #13 at p. 4] (emphasis in the original). Plaintiff again listed two actions pending before the Illinois Court of Claims, 15-cc-3807 and 15-cc-2935. [Id. at pp. 4-5]. Plaintiff did not list any other lawsuits. Plaintiff signed his Complaint under penalty of perjury. [Id. at p. 12].

8. After being served with a summons and complaint, the Defendants investigated Plaintiff's litigation history.

9. A search of ECF/PACER for the Central District of Illinois turned up an undisclosed lawsuit filed by Plaintiff against Willard 0. Eleya, M.D, Michael Puisis, and Wexford Corp. [Exhibit 1. The case is captioned Collins v. Eleya, 10-cv-2095-HAB (CDIL). Plaintiff was the lead plaintiff in the lawsuit.

10. Plaintiff's involvement in Collins v. Eleya is verified by reference to his Illinois Department of Corrections inmate number, K-96345. Compare [ECF #13, Sec. II, p. 2] and [Exhibit 1, p. 2].

11. Collins v. Eleya addresses similar factual issues as those pending in this lawsuit, namely, a violation of Plaintiff's Eighth Amendment Constitutional rights based on allegedly deficient treatment for his hepatitis-C condition. See generally [Exhibit 1].

12. A search of ECF/PACER for the Central District of Illinois also turned up an earlier undisclosed lawsuit filed by Plaintiff against Willard 0. Eleya, M.D, Michael Puisis, and Wexford Corp. The case is captioned On v. Elyea, 08-cv-2232-HAB (CDIL). [Exhibit 2].

13. Collins v. Eleya was eventually consolidated with a similar action pending in the Central District of Illinois, Orr v. Elyea, 08-cv-2232-HAB (CDIL), wherein a Special Master was appointed to handle the resolution of inmate claims regarding their hepatitis-C treatment while in the custody of the Illinois Department of Corrections. See Collins v. Eleya, 10-cv-2095-HAB, Minute Entries of March 20, 2013 and March 21, 2013.

14. The Defendants previously moved to dismiss Plaintiff's Amended Complaint pursuant to Rule 12(b)(6) citing the foregoing deficiencies. [ECF #32].

15. Plaintiff then sought leave to file a Second Amended Complaint. [ECF #35]. Plaintiff filed a Second Amended Complaint on January 29, 2016. [ECF 344].

16. The Defendants have filed an Answer and Affirmative Defenses to Plaintiff's Second Amended Complaint contemporaneously with the instant Rule 12(c) motion. The Defendants' First Affirmative Defense is directed towards Plaintiff's failure to disclose prior litigation that dealt with some of the medical treatment at issue in this case.

17. The Defendants now seek judgment on their First Affirmative Defense and move to dismiss the instant lawsuit for Plaintiff's failure to disclose Orr v. Elyea, 08-cv-2232-HAB (CDIL) and Collins v. Eleya, 10-cv-2095-HAB (CDIL) in either his Complaint or his Amended Complaint, despite signing his Complaint and Amended Complaint under penalty of perjury that he had listed all of his lawsuits.

18. The Defendants also request leave to pursue sanctions against Plaintiff in the form of attorney's costs and fees associated with researching, drafting, briefing, and arguing their prior Rule 12(b)(6) Motion to Dismiss [ECF #32] and the current Rule 12(c) Motion for Judgment on the Pleadings, as well as entering a strike against Plaintiff under 28 U.S.C. § 1915(g).

II. Applicable Law

A. Rule 12(c) Motions for Judgment on the Pleadings

19. Rule 12(c) states that "[a]fter the pleadings are closed—but early enough not to delay trial—a party may move for judgment on the pleadings." A Rule 12(c) motion may be submitted after the close of the pleadings to raise various defenses regarding procedural defects. Alexander v. City of Chicago, 994 F.3d 333, 335 (7th Cir. 1993). A motion for judgment on the pleadings is subject to the same standards as a Rule 12(b)(6) motion to dismiss. Id; see also United States v. Wood, 925 F.2d 1580, 1581 (7th Cir. 1991). All well-pleaded facts are taken as true and all inferences are drawn in favor of the plaintiff Dawson v. Gen. Motors Corp., 997 F.2d 369, 372 (7th Cir. 1992). "A motion for judgment on the pleadings may be granted only if the moving party clearly establishes that no material issue of fact remains to be resolved and that he or she is entitled to judgment as a matter of law." Nat'l Fidelity Life Ins. Co. v. Karaganis, 811 F.2d 357, 358 (7th Cir. 1982).

B. Failure to Disclose Prior Lawsuits in In Forma Pauperis Complaints

20. The Court has a continuing duty under 28 U.S.C. § 1915(e)(2) to dismiss any frivolous or malicious claims in lawsuits filed in forma pauperis. ("Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall dismiss the case at any time if the court determines that . . . the action . . . is frivolous or malicious; fails to state a claim on which relief may be granted; or seeks monetary relief against a defendant who is immune from such relief") (emphasis supplied); see also Lasley v. Welborn, 192 F. App'x. 541 (7th. Cir. 2006) (finding that "§ 1915(e)(2) authorized the action taken by the district court" to screen suit eighteen months after filing and dismiss for failure to state a claim); Holly v. Wexford Health Services, Inc., 339 F. App'x. 633, 636 (7th Cir. 2009) (court confronted with basis to dismiss under § 1915(e)(2) "need not wait for a motion to dismiss and can apply [§ 1915(e)(2)] sua sponte"); Thomas v. General Motors Acceptance Corp., 288 F.3d 305, 306 (7th Cir. 2002) (because the conditions of § 1915(e)(2) were satisfied, "the suit had to be dismissed; the judge had no choice").

21. "There is a long line of cases holding that if a plaintiff makes false statements to the court in the application to proceed in forma pauperis or falsely denies the existence of prior civil actions, such a case can be dismissed as malicious." Okechukwu Uduko v. Cozzens, 2012 U.S. Dist. LEXIS 164998 at fn. 2 (E.D. Mich. Sept. 21, 2011), citing Lee v. Toney, 2011 U.S. Dist. LEXIS 105397, 2011 WL 4026645 (S.D. Ala. 2011); Freeman v. Voorheis, 2011 U.S. Dist. LEXIS 21345, 2011 WL 826802, at *3 (S.D. Ohio 2011) (finding that the "[p]laintiff's false statements in his applications to proceed in forma pauperis provide an additional basis for dismissal of this litigation as `malicious' under 28 U.S.C. § 1915(e)(2)(B)(i)"); Horton v. Thomas, 1996 U.S. Dist. LEXIS 1608, 1996 WL68013, at *2 (N.D. Ill. 1996) (the court opined, in dismissing the inmate's action as malicious for his denial of prior actions and attempt to re-litigate prior claims, that lain indigent who boldly lies to a judge to gain entry to the courts cannot expect to reap the advantages of cost-free filing no matter what the merits of his suit"); Rivera v. Allin, 144 F.3d 719, 731 (11th Cir. 1998) (affirming the district court's counting as a strike an action where plaintiff "had lied under penalty of perjury about the existence of a prior lawsuit . . . and finding that [a]lthough the district court may not have uttered the words `frivolous' or `malicious,' dismissal for abuse of the judicial process is precisely the type of strike that Congress envisioned when chaffing section 1915(g)"), abrogated on other grounds by Jones v. Bock, 549 U.S. 199 (2007); see also Blacker v. Satterthwaite, 2011 U.S. Dist. LEXIS 145720, 2011 WL 6338851 (S.D. Ohio 2011) (Plaintiff required to identify full litigation history in any complaint or appeal and the failure to do so would likely result in dismissal and further sanctions), citing Walton v. Fairman, 1993 U.S. Dist. LEXIS 4157, 1993 WL 96427 at *4 (N.D. Ill. 1993) (dismissing plaintiff for attempting to deceive the court regarding prior litigation history). See also Garland v. O'Grady, 1988 U.S. Dist. LEXIS 12370, 1988 WL 118879 at *2-3 (N.D. Ill., Nov. 3, 1988) (by failing to list prior lawsuits, inmate "perjured himself"); see also, generally Warren v. Guelker, 29 F.3d 1386, 1390 (9th Cir. 1994) (Rule 11 applies to false statements by prisoner regarding litigation history); Horsey v. Asher, 741 F.2d 209, 212 (8th Cir. 1984) (complaint is malicious if Plaintiff makes false statements with intent to deceive the court).

III. Argument

A. Plaintiff's Complaint Is Perjured and Should Be Dismissed as Malicious

22. Pursuant to its continuing duty under 28 U.S.C. § 1915(e)(2), this Court should dismiss Plaintiff's Amended Complaint with prejudice as a malicious pleading, for providing false information to the Court about the existence of Plaintiff's other lawsuits, Orr v. Elyea, 08-cv-2232-HAB (CDIL) and Collins v. Eleya, 10-cv-2095-HAB (CDIL). Plaintiff failed to disclose these lawsuits in either his Complaint or his Amended Complaint, which is a material defect in his pleadings. The Defendants raised these defects as their First Affirmative Defense in their Answer to Plaintiff's Second Amended Complaint.

23. Even more concerning is the fact that Orr v. Elyea, Collins v. Eleya and the case sub judice all contain very similar factual and legal issues that the Court reviewed twice in its Section 1915A Orders—namely, whether the treatment (or lack thereof) for Plaintiff's hepatitis-C amounts to a violation of his Eighth Amendment Constitutional rights.

24. Moreover, the relevant sections in the Complaint and the Amended Complaint both state, in very explicit terms, that Plaintiff had to disclose all lawsuits he was involved with. The form Plaintiff used for his Complaint even mentioned disclosing cases in the Central and Southern Districts of Illinois. Plaintiff did not do so. There are no material facts to dispute here—Plaintiff failed to disclose prior litigation involving medical issues that were at issue in this case.

25. Plaintiff was granted leave to proceed in forma pauperis and then perjured himself to conceal the existence of two similar lawsuits as the one pending before the Court. This amounts to malicious behavior under 28 U.S.C. § 1915(e)(2), requiring the Court to dismiss this matter with prejudice. Walton v. Fairman, 1993 U.S. Dist. LEXIS 4157, 1993 WL 96427 at *4 (N.D. Ill. 1993) (dismissing plaintiff for attempting to deceive the court regarding prior litigation history). See also Garland v. O'Grady, 1988 U.S. Dist. LEXIS 12370, 1988 WL 118879 at *2-3 (N.D. Ill., Nov. 3, 1988) (by failing to list prior lawsuits, inmate "perjured himself"). Therefore, this lawsuit should be dismissed as malicious and frivolous under 28 U. S. C. § 1915(e)(2),

B. Defendants Should Be Allowed to Seek to Sanctions

26. In light of the foregoing, the Defendants should be allowed leave to seek sanctions against Plaintiff under Rule 11. Plaintiff, even though he initially appeared pro se, was not exempt from the requirements of Federal Rule of Civil Procedure 11. Plaintiff's perjury is grounds enough under Rule 11 to dismiss this action as frivolous and malicious. Moreover, Plaintiff's perjured Complaint and perjured Amended Complaint precluded the possible dismissal of this action at screening under 28 U.S.C. § 1915A. As a result thereof, the Defendants incurred substantial costs and fees to investigate Plaintiff's litigation background and draft the instant motion for judgment on the pleadings and a previous motion to dismiss. See [ECF #35]. Pursuant to Federal Rule of Civil Procedure 11, Plaintiff should be made to bear the costs and fees the Defendants have incurred in connection with bringing Plaintiff's failure to disclose prior litigation to light.

C. Dismissal of this Lawsuit Should Count as a Strike

27. Finally, should the Court dismiss Plaintiff's lawsuit as malicious or frivolous, this Court should deem that dismissal counts as a "strike" under the Prison Litigation Reform Act, 28 U.S.C. § 1915(g).

WHEREFORE, the Defendants, SUSAN TUELL, P.A., BESSIE DOMINGUEZ, M.D., JILL WAHL, M.D., and IRENE DYER, P.A., respectfully request that this Honorable Court enter an Order: (1) granting the instant Rule 12(c) Motion for Judgment on the Pleadings; (2) dismissing Plaintiff's cause of action with prejudice; (3) granting the Defendants leave to seek sanctions for fees and costs incurred with investigating, preparing, and presenting the instant Rule 12(c) Motion for Judgment on the Pleadings and previous Motion to Dismiss [ECF #35]; (4) counting dismissal of this action as a "strike" under 28 U.S.C. § 1915(g); and (5) for any other relief deemed equitable and just.

EXHIBIT 1

COMPLAINT

JURISDICTIONAL STATEMENT

Plaintiff's are all inmates or former inmates of the Illinois Department of Corrections. Plaintiff's' civil rights were violated in contravention of 42 U.S.C. § 1983 because the Defendants were deliberately indifferent to Plaintiff's' medical condition in that inmates did not receive needed medical treatment for Hepatitis C. As further set forth in this Complaint, Plaintiff's have exhausted all administrative remedies.

This action arises under the Eighth and Fourteenth Amendments to the United States Constitution and 42 U.S.C. § 1983. Jurisdiction is invoked pursuant to 28 U.S.C.§§ 1331 and 1343(a). This Court has jurisdiction over the Plaintiff's request for declaratory and injunctive relief pursuant to 28 U.S.C.§§ 2201-2202.

PARTIES

1, The Plaintiff's are or were inmates at various Correctional Centers, prisons maintained by the Illinois Department of Corrections (hereinafter "IDOC") in Illinois who are elgible to file as a result of:

2. The Plaintiff's have all been diagnosed through blood work as carrying the Hepatitis C virus.

3. Defendant WILLARD O. ELYEA, M.D., was the Agency Medical Director of IDOC, and thus had primary responsibility for determining procedures within IDOC for the medical treatment of state inmates. In his professional capacity he was informed of Plaintiff's' complaints and grievances, and has taken no action thereupon. He personally adopted the policy which denied medical treatment to Plaintiff's.

4. That Defendant Michael Pruisis succeeded Willard 0. Elyea as Agency Medical Director, Illinois Department of Corrections and he personally adopted and continued the policy promulgated by Defendant Elyea in refusing to give medical care to prisoners with Hepatitis C.

5. That Wexford, Corp., by and through its agents and employees, conspired with and aided and abetted with the Defendants in implementing their policy and in the process of denying Plaintiff's their constitutional rights.

6. Plaintiff's have exhausted all administrative remedies available to them. Further, Defendants have adopted a polity that all grievances in this matter are to be denied without consideration making further administrative efforts futile.

FACTUAL CLAIMS

7. Hepatitis C is a potentially fatal disease which if left untreated may cause cirrhosis, or destruction of the liver, may lead to liver cancer and causes other symptoms to those it afflicts, thus it poses a substantial risk of serious harm to Plaintiff's.

8. Defendants know that Hepatitis C poses a substantial risk of serious harm to the Plaintiff's.

9. A highly effective chemical treatment program for Hepatitis C is available, which has been shown to reduce the effects of Hepatitis C, and even in some cases destroy it completely.

10. Before initiating this chemical treatment, however, the usual clinical step is to refer the patient to a specialist to determine a geno-type of the virus, determine viral level, and perform a liver biopsy on a patient to determine whether a patient is a good candidate for chemical treatment.

11. None of the Plaintiff's have received proper medical care for his or her Hepatitis C.

12. IDOC, through Defendants, claims to follow the federal guidelines for treatment of Hepatitis C. They follow the provision for pretrial detainees.

13. Plaintiff's were told that after a diagnosis for Hepatitis C based on blood work, inmates must wait one year before receiving a liver biopsy and beginning treatment. This requirement appears nowhere within the federal guidelines IDOC claims to follow.

14. Treatment for Hepatitis C is more effective when it is begun early in the course of the disease. However, if treatment is postponed, adverse effects of the disease and the necessity of a liver transplant become much more likely. Liver transplants are painful, difficult to obtain, and result in a lower recovery rate than the chemical treatment available for the early stages of Hepatitis C infection.

15. Defendants refuse to administer the Hepatitis C chemical treatment to Plaintiff's.

16. By refusing to treat Plaintiff's for Hepatitis C, Defendants are deliberately indifferent to the substantial risk of serious harm faced by the Plaintiff's,

17. Defendants' refusal to treat Plaintiff's for Hepatitis C is a willful and intentional deprivation meriting a punitive damage award against Defendants.

18. Defendant' refusal to treat Plaintiff's for Hepatitis C is causing and continues to cause irreparable harm to Plaintiff's.

19. Defendants' refusal to treat Plaintiff's for Hepatitis C is causing the Plaintiff's compensable pain and suffering.

WHEREFORE, Plaintiff's pray this court for injunctive relief in the form of an order to administer Hepatitis C treatment, follow federal guidelines in treating Hepatitis C including referral to a specialist and performing liver biopsies as soon as possible. Plaintiff's also pray for a declaration that Defendants are violating the rights of Plaintiff's under the 8th and 14th Amendments to the United States Constitution, Plaintiff's also pray for their attorneys' fees pursuant to 42 U.S.C.§ 1988. Finally, Plaintiff's pray for damages from the Defendants in the sum of One Million Dollars ($1,000,000.00) each for the pain and suffering they have had to endure as a result of Defendants' constitutional violations and One Million Dollars ($1,000,000.00) each in punitive damages together with their costs of this action.

JURY DEMAND

Plaintiff's hereby demand trial by jury.

EXHIBIT

COMPLAINT

JURISDICTIONAL STATEMENT

Plaintiff's are all inmates or former inmates of the Illinois Department of Corrections. Plaintiff's' civil rights were violated in contravention of 42 U.S.C. § 1983 because the Defendants were deliberately indifferent to Plaintiff's' medical condition in that inmates did not receive needed medical treatment for Hepatitis C. As further set forth in this Complaint, Plaintiff's have exhausted all administrative remedies.

This action arises under the Eighth and Fourteenth Amendments to the United States Constitution and 42 U.S.C. § 1983. Jurisdiction is invoked pursuant to 28 U.S.C.§§ 1331 and 1343(a). This Court has jurisdiction over the Plaintiff's request for declaratory and injunctive relief pursuant to 28 U.S.C. §§ 2201-2202.

PARTIES

1. The Plaintiff's are or were inmates at various Correctional Centers, prisons maintained by the Illinois Department of Corrections (hereinafter "IDOC") in Illinois.

2. The Plaintiff's have all been diagnosed through blood work as carrying the hepatitis C virus.

3. Defendant WILLARD 0. ELYEA, M.D., was the Agency Medical Director of IDOC, and thus had primary responsibility for determining procedures within IDOC for the medical treatment of state inmates. In his professional capacity he was informed of Plaintiff's' complaints and grievances, and has taken no action thereupon. He personally adopted the policy which denied medical treatment to Plaintiff's.

4. That Defendant Michael Pruisis succeeded Willard 0. Elyea as Agency Medical Director, Illinois Department of Corrections and he personally adopted and continued the policy promulgated by Defendant Elyea in refusing to give medical care to prisoners with Hepatitis C.

5. That Wexford, Corp., by and through its agents and employees, conspired with and aided and abetted with the Defendants in implementing their policy and in the process of denying Plaintiff's their constitutional rights.

6. Plaintiff's have exhausted all administrative remedies available to them. Further, Defendants have adopted a polity that all grievances in this matter are to be denied without consideration making further administrative efforts futile.

FACTUAL CLAIMS

7. Hepatitis C is a potentially fatal disease which if left untreated may cause cirrhosis, or destruction of the liver, may lead to liver cancer and causes other symptoms to those it afflicts, thus it poses a substantial risk of serious harm to Plaintiff's.

8. Defendants know that Hepatitis C poses a substantial risk of serious harm to the Plaintiff's.

9. A highly effective chemical treatment program for Hepatitis C is available, which has been shown to reduce the effects of Hepatitis C, and even in some cases destroy it completely.

10. Before initiating this chemical treatment, however, the usual clinical step is to refer the patient to a specialist to determine a geno-type of the virus, determine viral level, and perform a liver biopsy on a patient to determine whether a patient is a good candidate for chemical treatment.

11. None of the Plaintiff's have received proper medical care for his or her Hepatitis C.

12. IDOC, through Defendants, claims to follow the federal guidelines for treatment of Hepatitis C. They follow the provision for pretrial detainees.

13. Plaintiff's were told that after a diagnosis for Hepatitis C based on blood work, inmates must wait one year before receiving a liver biopsy and beginning treatment. This requirement appears nowhere within the federal guidelines IDOC claims to follow.

14. Treatment for Hepatitis C is more effective when it is begun early in the course of the disease. However, if treatment is postponed, adverse effects of the disease and the necessity of a liver transplant become much more likely. Liver transplants are painful, difficult to obtain, and result in a lower recovery rate than the chemical treatment available for the early stages of Hepatitis C infection.

15. Defendants refuse to administer the Hepatitis C chemical treatment to Plaintiff's.

16. By refusing to treat Plaintiff's for Hepatitis C, Defendants are deliberately indifferent to the substantial risk of serious harm faced by the Plaintiff's.

17. Defendants' refusal to treat Plaintiff's for Hepatitis C is a willful and intentional deprivation meriting a punitive damage award against Defendants.

18. Defendant' refusal to treat Plaintiff's for Hepatitis C is causing and continues to cause irreparable harm to Plaintiff's.

19. Defendants' refusal to treat Plaintiff's for Hepatitis C is causing the Plaintiff's compensable pain and suffering.

WHEREFORE, Plaintiff's pray this court for injunctive relief in the form of an order to administer Hepatitis C treatment, follow federal guidelines in treating Hepatitis C including referral to a specialist and performing liver biopsies as soon as possible. Plaintiff's also pray for a declaration that Defendants are violating the rights of Plaintiff's under the 8' and 14th Amendments to the United States Constitution. Plaintiff's also pray for their attorneys' fees pursuant to 42 U.S.C.§ 1988. Finally, Plaintiff's pray for damages from the Defendants in the sum of One Million Dollars ($1,000,000.00) each for the pain and suffering they have had to endure as a result of Defendants' constitutional violations and One Million Dollars ($1,000,000.00) each in punitive damages together with their costs of this action.

JURY DEMAND

Plaintiff's hereby demand trial by jury.

EXHIBIT

Reporter

1988 U.S. Dist. LEXIS 12370; 1988 WL 118879

JAMES GARLAND, Plaintiff, v. JAMES E. O'GRADY, SPENCER LEAK, STEVEN ROSSETTI, and CAPTAIN SYKES, Defendants

Opinion by: [*1] CONLON

Opinion

MEMORANDUM OPINION AND ORDER

SUZANNE B. CONLON, UNITED STATES DISTRICT JUDGE

James Garland brings this action pursuant to 28 U.S.C. § 1331 seeking damages and other relief against Cook County Sheriff James E. O'Grady and various officials of the Cook County Jail. The complaint comes before the court on Garland's motion for leave to file in forma pauperis. Finding the complaint both frivolous and malicious, the court denies the motion and dismisses this case.

The complaint in this case is a broad attack upon the conditions of confinement at the Cook County Jail. In rather general terms, Garland challenges such matters as overcrowding at the Jail, food handling, medical care, cleanliness, and recreation. Garland raised these matters in a prior suit, Perrian v. O'Grady 88 C 4205 (June 16, 1988) Because the complaint in this case does not overcome the deficiencies that Judge Charles Norgle noted in the earlier action, the court finds this action frivolous as a matter of law. Furthermore, because Garland has in effect perjured himself by swearing under oath that he has not filed any previous lawsuits in federal court dealing either with his imprisonment or with the [*2] same facts involved in this action, the court also finds the complaint malicious.

In deciding whether a plaintiff is entitled to proceed as a pauper under 28 U.S.C. § 1915(a), the court may assess not only the financial status of the plaintiff, but also the merits of the complaint. Wartman v. Milwaokee County Court 510 F.2d 130, 132 (7th Cir.1975). If the court determines that the complaint is "frivolous or malicious," it may deny an indigent leave to file in forma pauperis and dismiss the case pursuant to 28 U.S.C. § 1915(d). Smith-Bey v. Hospital Administrator, 841 F.2d 751, 757 (7th Cir. 1988). Denial of leave to file in forma pauperis on grounds that the complaint is frivolous or malicious is, unless otherwise specified, equivalent to a dismissal with prejudice. See Brekke v. Morrow, 840 F.2d 4 (7th Cir. 1988); Jones v. Norris, 777 F.2d 1277, 1279 (7th Cir. 1985). A complaint is frivolous if plaintiff "can make no rational argument in law or facts to support his claim for relief." Corgain v. Milier 708 F.2d 1241, 1247 (7th Cir. 1983). The Seventh Circuit has determined that the standard for frivolity under Section 1915(d) is less stringent than the standard [*3] for dismissing a complaint for failure to state a claim upon which relief may be granted under Rule 12(b)(6) of the Federal Rules of Civil Procedure. Williams v. Faulkner 837 F.2d 304, 307 (7th Cir. 1988), cert. granted sub. nom Neitzke v. Williams, 57 U.S.L.W. 3198, 3230 (U.S. Oct. 3, 1988) (No. 87-1882). It has not, however, defined maliciousness. Other Circuits have found a complaint to be malicious under Section 1915(d) if it is repetitive or evidences an intent to vex defendants or abuse the judicial process by relitigating claims decided in prior cases Crisafi v. Holland, 655 F.2d 1305, 1309 (D.C. Cir. 1981); Phillips v. Carey, 638 F.2d 207, 209 (10th Cir.), cert. denied. 450 U.S. 985 (1961); Balientine v. Crawford. 583 FSuop. 627, 628-29 (N.D. Ind. 1983). Applying these standards to this case, the court concludes that the complaint is both frivolous and malicious.

This action is frivolous for the reasons stated by Judge Norgle in Perrian. Namely, Garland's claims are almost wholly encompassed by the class action consent decree entered in Duran v. O'Grady, 74 C 2949 (N.D. Ill. Jan. 4. 1980) now pending before Judge Milton I. Shadur. As Judge No Norgle noted in Garland's earlier case, Duran largely precludes Garland from independently pursuing those claims covered by the consent decree. If defendants have violated the terms of the consent decree, then Garland may seek an order of contempt from the judge overseeing Duran, or, if Garland feels that the consent decree is inadequate to protect his constitutional rights, then he may seek to have it amended. See Alexander v. Ware, 714 F.2d 416. 420 (5th Cir. 1983). He cannot, however, properly use this case to relitigate claims decided in the Duran class action See Crawford v. Bell. 599 P.2d 890, 892-93 (9th Cir. 1979).

To assist Garland and assure that his rights were adequately protected, Judge Norgle referred Garland's earlier case to the attorneys representing the class in Duran. Garland was directed to confer with the Duran attorneys and, after he consulted with them, given leave to file an amended complaint as to claims not covered by Duran. The court cannot tell from the complaint whether Garland has discussed his case with the attorneys representing the class in Duran. It is clear, however, that he has chosen to ignore the admonitions

[*5] of Judge Norgle and once again attempt to relitigate the issues of overcrowding, food handling, sanitation, and recreation covered by Duran. While a consent decree in a class action suit involving a class certified under Rule 23(b)(2) of the Federal Rules of Civil Procedure will not bar an individual from pursuing a damage claim for personal injuries suffered before institution of the class action suit, Wright v. Collins. 766 F.2d 841, 847-49 (4th Cir. 1985): see Crowder v. Lash. 687 F.2d 996, 1008 (7th Cir. 1982). that is not what Garland alleges here. For the most part, the complaint merely catalogues what Garland considers to be objectionable prison conditions with little indication as to how the conditions have affected him personally.1 Indeed, his request for damages shows that he intends this case as a class action. He asks for $10 million "to be distributed to the `concerned parties' and myself." But Garland must sue on his own behalf. Absent some indication of personal injury, his claims are insufficient to survive the Duran decree. See Cotner v. Hopkins, 795 F.2d 900, 902 (10th Cir. 1986).

[*6] Alternatively, the court finds this action subject to dismissal as malicious. Unlike the objective frivolity test, the test for maliciousness is a subjective one. It requires the court to "determine the . . . good faith of the applicant." Kinney v. Plymouth Rock Squab Co., 236 U.S. 43, 46 (1915); see Wright v. Newsome. 795 F.2d 964, 968 n.1 (11th Cir. 1986). Good faith may be found lacking when a plaintiff attempts to abuse the judicial process by filing a complaint that merely repeats claims already decided in prior cases. Crisafi, supra: see Glick v. Gutbrod, 782 F.2d 754, 757 (7th Cir. 1986): Graham v. Riddle. 554 F.2d 133, 135 (4th Cir. 1977) Lack of good faith or malice also can be inferred from a complaint containing material allegations of fact that plaintiff knows to be untrue or false statements made with intent to deceive the court. See Horsey v. Asher, 741 F.2d 209. 212 (8th Cir. 1984). Not only is Garland engaged in duplicative litigation, but he has also perjured himself with respect to his litigation history in this court.

The pro se complaint form this district requires pro se prisoners to use for civil rights actions contains two questions regarding [*7] a plaintiff's previous lawsuits. The first questions asks: "Have you begun other lawsuits in state or federal court relating to your imprisonment." The second question inquires "If your answer is yes, did any of these lawsuits deal with the same facts involved in this action or otherwise relate to your claim?" Garland responded no to both of these questions The court's records, however, reveal otherwise. This is the fourth civil rights complaint that Garland has filed in this court since April 1988. Moreover, Garland's complaint in Perrian. supra, asserted precisely the same claims presented here. When Garland answered the questions on the complaint form, he attested to the truth of his reponses under penalty of perjury in accord with 28 U.S.C. § 1746. Garland's failure to fully disclose the existence of an earlier civil rights suit that raised the same claims he seeks to pursue here is an abuse of the judicial process and 88 C 8281 "malicious within the meaning of Section 1915(d). Having lied to the court under oath, Garland should not be granted the benefits of cost free filing under the in forma pauperis statute. The court therefore concludes that the petition for leave to [*8] file in forma pauperis must be denied.

Accordingly, the court denies plaintiff's motion for leave to file in forma pauperis and dismisses this case with prejudice. Plaintiff's motion for appointment of counsel is denied as moot.

November 2, 1988

Reporter

1993 U.S. Dist. LEXIS 4157; 1993 WL 96427

JOHNNY WALTON, JAMES GARLAND, EDDIE BAINES, ANTHONY GARDNER, CURTIS CROFT, ROYTHOMAS, ROBERT BOYD, CARL PAGE, LINNEL HARDING and FRED REED, Plaintiff's, v. DIRECTOR J.W. FAIRMAN, SHERIFF MICHAEL SHEHHAN, SUPT. CALDWELL, COOK COUNTY DEPARTMENT OF CORRECTIONS, Defendants.

disposition: [*1] Defendants' motion to dismiss is denied. Plaintiff's' request for injunctive relief is denied. Plaintiff's' motions for temporary restraining orders, filed September 21, 1992, and March 5, 1993, are denied. Plaintiff James Garland is dismissed from this action.

judges: Williams

opinion by: ANN CLAIRE WILLIAMS

Opinion

MEMORANDUM OPINION AND ORDER

Johnny Walton, James Garland, Eddie Baines, Anthony Gardner, Curtis Croft, Roy Thomas, Roger Boyd, Carl Page, Linnel Harding, and Fred Reed ("plaintiff's"), pre-trial detainees at Cook County Jail, bring this pro se complaint pursuant to 42 U.S.C. § 1983 against J.W. Fairman, Executive Director of the Cook County Department of Corrections ("CCDOC"); Michael Sheahan,1 the Sheriff of Cook County; and Benny Caldwell, Superintendent of Division I of the CCDOC ("defendants"). On June 30, 1992, defendants filed a motion to dismiss. For some unknown reason, plaintiff's' response to the motion was not filed with the court, although defendants were served with a copy and filed a reply on July 22, 1992. The court alerted plaintiff's that it had not received their response and gave them until September 11, 1992, to file the same response with [*2] the court that they had served on defendants. Instead, plaintiff's filed a motion for a temporary restraining order, claiming, among other things, that their legal papers had been taken and they no longer had a copy of the response. Defendants tendered a copy of plaintiff's' response to the court on December 4, 1992, which the court ordered the clerk to file. Defendants also responded to plaintiff's' motion for a temporary restraining order. To date, plaintiff's have not replied to defendants' response, but on March 5, 1993, they filed another motion for a temporary restraining order and/or preliminary injunction.

I. Standard of Review

Under Rule 12(b)(6), a claim may be dismissed if as a matter of law "it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations." Neitzke v. Williams, 490 U.S. 319. 327 (1989) (quoting Hishon v. King & Spalding, 467 U.S. 69, 73 (1984)). [*3] In reviewing a motion to dismiss, the court accepts as true the well-pleaded allegations in the complaint and considers the allegations and the reasonable inferences from them in a light most favorable to the plaintiff. Marmon Group Inc. v. Rexnord. 822 F.2d 31, 34 (7th Cir. 1987): Howard v. Wheaton. 668 F.Supp. 1140, 1141 (N.D. III. 1987). In the case of a pro se action, the court construes the complaint more liberally than it would formal pleadings drafted by lawyers. Hughes v. Rowe, 449 U.S. 5, 9 (1980).

II. Facts

Plaintiff's challenge the conditions at the Cook County Jail ("CCJ"). They allege that the food trays are unsanitary because plastic peels off the trays, waters seeps into cracks in the trays causing foul odors, and the trays are unclean with food from other meals caked along the sides. They claim that the food workers do not wear gloves or hair nets and are not given medical tests. They complain that they have found roaches and other bugs in their food, that the food trays often sit uncovered for hours on the floor in dank tunnels, and that the food is served on the [*4] tier cold and does not comply with state regulations. They aver that they have become sick and nauseous from eating the plastic peeling from the food trays, and that those of whom are Muslims must throw away their trays and not eat at all. They seek a declaratory judgment, injunctive relief, and compensatory and punitive damages.

iii. Analysis

a. Injunctive Relief

On April 9, 1982, a consent decree was entered in what is now captioned Duran v. Sheahan, Case No. 74 C 2949, whose terms govern most aspects of the conditions of confinement at CCJ, including food service and vermin control. As CCJ inmates plaintiff's are members of the class and therefore bound by the decree, Martin v. Davies. 917 F.2d 336. 339 (7th Cir. 1990). cert. denied, 115 L. Ed. 2d 978, 111 S.Ct. 2805 (1991), which forecloses them from asserting individual claims for equitable relief. Id. at 340. Their request for injunctive relief is accordingly denied.

b. Conditions of Confinement-Food

Prisoners who claim that conditions of confinement constitute cruel and unusual punishment in violation of the Eighth Amendment [*5]2 must show deliberate indifference on the part of prison officials. Wilson v. Seiter, 111 S.Ct. 2321, 115 L. Ed. 2d 271, 59 U.S.L.W. 4671 (1991).

Whether the alleged contamination of food by foreign objects and the other claimed mishandling of the food rises to the level of a constitutional violation hinges on both the objective and subjective [*6] prongs of Wilson. The objective prong asks whether the deprivation was sufficiently serious and looks to the conditions themselves. Id. Correctional officials are obligated to provide "nutritionally adequate food that is prepared and served under conditions which do not present an immediate danger to the health and well being of the inmates who consume it." French v. Owens, 777 F.2d 1250, 1255 (7th Cir. 1985), cert. denied, 479 U.S. 817 (1986) (quoting Ramos v. Lamm. 639 F.2d 559, 571 (10th Cir. 1980). cert. denied, 450 U.S. 1041 (1981)). Plaintiff's complain that they have become ill from eating contaminated food. Accordingly, the court finds that they have alleged sufficient facts to meet the objective prong.

The subjective prong of Wilson looks to intent and asks whether prison officials acted with a sufficiently culpable state of mind. 111 S. Ct. at 2324. In the Seventh Circuit, the minimum showing of intent needed to state a claim of cruel and unusual punishment is deliberate indifference. [*7] Duane v. Lane, 959 F.2d 673, 676 (7th Cir. 1992). "Deliberate indifference" entails that prison officials have "actual knowledge of impending harm rather than a mere suspicion" and must "consciously and culpably" refuse to take steps to prevent the harm. Campbell v. Greer. 831 F.2d 700, 702 (7th Cir. 1987). Mere negligence is not deliberate indifference. Id. Prison officials must show total unconcern for a prisoner's welfare in the face of serious risks. Duane at 676.

In an attempt to argue lack of intent, defendants claim the jail serves more than 24,000 meals a day and plaintiff's have pleaded only a few isolated incidents of alleged food contamination. On a motion to dismiss, if a matter outside the pleading is presented to the court, the motion shall be treated as one for summary judgment, unless the court excludes the matter. Fed.R.Civ.P. 12(b). At this time the court excludes from consideration how many meals a day the jail serves because this, of course, is a bare allegation, totally unsupported by affidavits or the like.

Defendants have also argued that food service is governed by the Duran decree. [*8] As noted above, Duran precludes only injunctive relief; plaintiff's' damage claim is still viable. At this stage of the litigation, the court cannot find that plaintiff's can prove no set of facts in support of their claims which will entitle them to relief.

c. Individual Capacity

Defendants argue that they cannot be held liable in their individual capacities. It is well established that liability under § 1983 must be based on personal involvement in a constitutional deprivation. Rascon v. Hardiman, 803 F.2d 269, 273 (7th Cir. 1986): Wolf-Lillie v. Sonauist. 699 F.2d 864, 869 (7th Cir. 1983). Absent direct responsibility for the conduct complained of, liability will not lie against a supervisory official. Rascon, 803 F.2d at 273. There must be an affirmative link or causal connection between the misconduct complained of and the official sued. Id. Furthermore, the doctrine of respondeat superior does not apply in a § 1983 action. See Jones v. City of Chicago 856 F.2d 985, 992 (7th Cir. 19881.

Defendants contend that they do not prepare the food, [*9] nor have plaintiff's alleged they prepare the food. They also claim that the complaint lacks any explanation of how and when defendants received personal knowledge of the alleged deprivations. Plaintiff's, however, have attached to the complaint numerous grievances which they allegedly filed. It is not clear to whom these grievances were directed. Nonetheless, an official's direct participation in the alleged deprivation need not be alleged. As stated in Smith v. Rowe. 761 F.2d 360, 369 (7th Cir. 1985) (quoting Crowder v. Lash, 687 F.2d 996, 1005 (7th Cir. 1982)):

Because it is far too unclear whether defendants had any personal knowledge of these grievances, the court concludes that it is too soon in the litigation to dismiss defendants on the basis of lack of personal knowledge. Moreover, Fairman, as executive director [*10] of CCDOC, is in the best position to identify the alleged violators of plaintiff's' constitutional rights, if they have indeed been violated. See Duncan v. Duckworth, 644 F.2d 653, 655 (7th Cir. 1981); Maclin v. Paulson, 627 F.2d 83, 87 (7th Cir. 1980).

D. Official Capacity

Defendants also argue that defendants cannot be held liable in their official capacities. It is well established that suits against governmental officials in their official capacity are actually suits against the governmental entity for which they work. Kentucky v. Graham, 473 U.S. 159, 164 (1985). Governmental entities cannot be held liable unless an official policy caused the constitutional violation asserted in the complaint. Monell v. Dept. of Social Services, 436 U.S. 658, 691-92 (1978); Thompson v. Duke, 882 F.2d 1180, 1107 (7th Cir. 1989). cert. denied, 495 U.S. 929, 110 S.Ct. 2167 (1990).

In Leatherman v. Tarrant Cty Narcotics Unit. S. Ct., 122 L. Ed. 2d 517, 1993 WL 52174 (U.S.). 61 U.S.L.W. 4205 (1993). [*11] the Supreme Court emphasized that the liberal system of "notice pleading" set up by the Federal Rules requires that a complaint include only "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a)(2). Although plaintiff's will be hard pressed to demonstrate that defendants have a policy and custom of doctoring and upgrading menus to show that the inmates are eating better than they actually are, the claim is sufficient to withstand a motion to dismiss.

E. First Amendment Violation

Although sparsely pleaded, plaintiff's appear to contend that they are forced to choose between eating and observing the tenets of their faith, a claim that has been recognized in a number of cases. See Hunafa v. Murphy, 907 F.2d 46, 47 (7th Cir. 1990) and cases cited therein. On the basis of the meager pleadings before it, the court also denies defendants' motion to dismiss the First Amendment claim.

F. Conditions of Confinement-Rats and Mice

In their response to the motion to dismiss, plaintiff's attempt to introduce another cause of action, that is, that rats and mice have been found in the food. [*12] In another action being heard by Judge Alesia, Walton, et al. v. Fairman, et al., No. 92 C 3372, another group of plaintiff's (many of whom are the same as in this group) are complaining that rats and mice overrun the jail. In fact, at least one of the exhibits attached to the response is the same as one of the exhibits attached to the complaint in No. 92 C 3372 (Walton's inmate grievance, dated 5-2-92). The court notes that four plaintiff's, Gardner, Croft, Thomas, and Boyd, who did not join the later action, did not file any exhibits alleging molestation by rats and mice in this action. The court accordingly dismisses this claim subject to consideration in Walton v. Fairman, No. 92 C 3372.

G. Plaintiff James Garland

The forms for pro se prisoner civil rights actions, required by Rule 47 of this court, require litigants to answer questions about previous actions they have filed in state and federal courts. Plaintiff's checked "No" by question "I.A. Have you begun other lawsuits in state or federal court relating to your imprisonment?" By signing the complaint the plaintiff's signified, under penalty of perjury, that all the foregoing statements were true and correct.

[*13] Garland, however, has filed five cases with this court previous to the current action: Caruth v. Fitzgerald, No. 88 C 31.29; Perrian v. O'Grady, 88 C 4205: Garland v. Schulz, No. 88 C 6862; Garland v. O'Grady, No. 88 C 8281; Garland v. Pucinski, No. 90 C 5755. Lack of good faith or malice may be inferred from a complaint containing untrue material allegations of fact or false statements made with intent to deceive the court. See Horsey v. Asher, 741 F.2d 209, 212 (8th Cir. 1984). The false statement Garland made about not filing previous actions is exacerbated by the fact that two of the cases, No. 88 C 4205 and No. 88 C 8281, dealt with similar issues as the current case. Judge Conlon in Garland v. O'Grady, No. 88 C 8281 (N.D.Ill. Nov. 3, 1986), in fact stated that "Garland has in effect perjured himself by swearing under oath that he has not filed any previous lawsuits in federal court dealing either with his imprisonment or with the same facts involved in this action," and found that Garland's complaint was malicious and dismissed it pursuant to 28 U.S.C. § 1915(d). Garland was obviously [*14] on notice that further attempts to deceive the court would result in dismissal. Therefore, he is dismissed from this case.

Walton also filed a previous case with this court, Walton v. Lane, No. 85 C 10/88. That action, however, dealt with allegations of deprivation of due process in a disciplinary hearing at Stateville Correctional Center. The court will give Walton the benefit of the doubt and not dismiss him from the action because the previous case was filed seven years ago and arose from entirely different incidents in another institution.

However, Walton and the other plaintiff's are now on notice that if they do not answer all questions on the form complaint truthfully, any such complaint may be dismissed as malicious pursuant to 28 U.S.C. § 1915(d). This warning also applies to all cases they may have filed since this one which may be pending before other judges of this court.

H. The Motions for Temporary Restraining Orders

In order to obtain a temporary restraining order, plaintiff's must show: 1) a reasonable likelihood of success on the merits; 2) the inadequacy of a remedy at law; 3) the existence of irreparable harm without [*15] the injunction; 4) that the threat of harm to them outweigh any harm to the defendants if the injunction were issued; 5) that the public interest would not be disserved if the injunction were granted. Somerset House. Inc. v. Turnock. 900 F.2d 1012, 1014-15 (7th Cir. 1990). In the motion for a temporary restraining order, filed September 21, 1992, Walton (although he signed it, Johnny Walton, et al., none of the other plaintiff's has signed the motion and the allegations obvious refer only to Walton) makes three claims: (1) that he is denied access to the law library; (2) that his legal mail has been tampered with and confiscated as evidenced by the failure of the court to receive plaintiff's' response to the motion to dismiss; and (3) that he is being held in segregation without a copy of the disciplinary report. Neither Walton nor any of the other plaintiff's replied to defendants' response to the motion. However, plaintiff's, as a matter of law, cannot prevail on the merits.

Plaintiff are constitutionally guaranteed meaningful access to the courts, and use of a law library is one alternative to this access. DeMallory v. Cullen. 855 F.2d 442, 446 (7th Cir. 1988). [*16] Reasonable access to a law library, however, is not unlimited access, and prison officials have the right to regulate the time, manner, and place in which library facilities are used. Hossman v. Soradlin, 812 F.2d 1019, 1021 (7th Cir. 1987). Moreover, plaintiff's' access to the courts does not appear to be deterred in any way as evidenced by their filing of numerous complaints. Plaintiff's also have not made a showing of any prejudice. See Shango v. Jurich, 965 P.2d 289, 292 (7th Cir. 1992) ("plaintiff must `allege some quantum of detriment caused by the challenged conduct of state officials resulting in the interruption and/or delay of plaintiff's pending or contemplated litigation'" (citations omitted)).

Defendants tendered to the court a copy of plaintiff's' response to the motion to dismiss, which the court ordered the clerk to file and send a copy to the plaintiff's. Plaintiff's' allegation that the court's not receiving this document evidences mail tampering or confiscation or both on the part of defendants is purely speculative. Moreover, plaintiff's' allegations that jail officials tamper with their legal mail is the [*17] subject of another action, Walton v. Fairman, No. 92 C 2846, being heard by this court's colleague, Judge Zagel. Plaintiff's' tendency to overlap the issues of their various suits pending in this court is beginning to smack of malicious and vexatious litigation.

Walton's final claim that he is being held in segregation without notice is totally devoid of merit. Defendants tendered to the court copies of disciplinary reports that Walton received. These indicate that Walton's detention in segregation and denial of access to the law library were temporary in nature and caused by his own violation of jail regulations. Plaintiff's' motion for a temporary restraining order, filed September 21, 1992, is denied.

Plaintiff's' second motion for a temporary restraining order, filed March 5, 1993, alleges that defendants now give them unnutritional lunch bags in place of the hot meals they were formerly served and that the bagged lunches are cold and sometimes frozen. The court finds it ironic that plaintiff's now seek to have the court to direct defendants "to return to a nutritionally adequate meal that is prepared and served under conditions which do not present an immediate danger to [*18] the health and well being of the inmates. . . ." (Court's emphasis.) Even assuming that these lunch bags are unnutritional and are not in accordance with the daily allowances of the National Academy of Sciences does not establish that the overall diet provided pretrial detainees is unnutritional. Moreover, even if they are served cold meals on a regular basis, this would not constitute a violation of the Eighth Amendment right to be free from cruel and unusual punishment. Hamm v. DeKalb County, 774 F.2d 1567, 1575 (11th Cir. 1985). cert. denied, 475 U.S. 1096 (1986) (that the food occasionally contains foreign objects or sometimes is served cold, while unpleasant, does not amount to a constitutional deprivation); Madvun v. Thompson, 657 F.2d 868, 874-75 (7th Cir. 1981) (allegation that food served to segregated prisoners was cold and not on menu served to general prison population was insufficient to state an Eighth Amendment claim); Hoitt v. Vitek, 497 F.2d 598, 601 (1st Cir. 1974) (prisoners' "allegation of deprivation of hot meals" failed "to state a claim [*19] of cruel and unusual punishment, given the stipulation that three meals were provided daily."); Zinomond v. Haraer, 602 F.Supp. 256, 263 (N.D. ind. 1985): Pinkston v. Bensinger, 359 F.Supp. 95, 99 (N.D.III. 1973).

Plaintiff's' motion for a temporary restraining order, filed March 5, 1993, is accordingly denied.

IV. Conclusion

For the foregoing reasons, defendants' motion to dismiss is denied. Plaintiff's' request for injunctive relief is denied. Plaintiff's' motions for temporary restraining orders, filed September 21, 1992, and March 5, 1993, are denied. Plaintiff James Garland is dismissed from this action. Defendants are given twenty days to answer or otherwise plead.

It is so ordered.

Reporter

1996 U.S. Dist. LEXIS 1608; 1996 WL 68013

CURTIS HORTON, Plaintiff, v. SERGEANT THOMAS, OFFICER DEEB, OFFICER RILEY, OFFICER NORWOOD, OFFICER LEE, and COOK COUNTY BOARD, Defendants.

Counsel: [*1] CURTIS R HORTON, plaintiff, [NTC] [PRO SE], Taylorville, Taylorville, IL.

FOR SGT THOMAS, CORR OFF DEEB, CORR OFF RILEY, CORR OFF NOKWOOD, CORR OFF LEE, COOK COUNTY BOARD, defendants: Susan Takata O'Leary, Illinois Department of Corrections, Chicago, IL.

Judges: Wayne R. Andersen, United States District Judge

Opinion by: Wayne R. Andersen

Opinion

MEMORANDUM. OPINION AND ORDER

Plaintiff Curtis Horton brings this pro se action pursuant to 42 U.S.C. § 1983 complaining about the conditions of his confinement at Cook County Jail ("CCJ"). Horton seeks injunctive relief as well as monetary damages. Before the court is plaintiff's motion to file his complaint in forma pauperis. For the reasons that follow, plaintiff's motion is denied.

I. INJUNCTIVE RELIEF

The court denies Horton's claims for injunctive relief. Although Horton is presently incarcerated at Robinson Correctional Center, he candidly states in his complaint, "plaintiff has been incarcerated at Cook County Jail approximately 20 times and is entirely likely to return to Cook County Jail in the future." Thus, Horton's claim for injunctive relief is based only on the possibility that he may again be subject [*2] to arrest and prolonged detention at CCJ. Although that may be a very real possibility given Horton's frank assertion, this likelihood is insufficient to establish a case or controversy under City of Los Angeles v. Lyons, 461 U.S. 95, 75 L. Ed. 2d 675, 103 S.Ct. 1660 (1983). In Lvons. the Supreme Court held that plaintiff lacked standing to seek injunctive relief because he could not show a real or immediate threat of future harm. Lyons, 461 U.S. at 105. The Court relied on its early decision in O'Shea v. Littleton, 414 U.S. 488, 38 L. Ed. 2d 674, 94 S.Ct. 669 (1973). which explained plaintiff's did not have standing simply because they "anticipate violating lawful criminal statutes and being tried for their offenses." Instead, it is to be assumed that `[plaintiff's] will conduct their activities within the law and so avoid prosecution and convictions as well as exposure to the challenged course of conduct said to be followed by petitioners." Lyons. 461 U.S. at 103. quoting O'Shea, 414 U.S. at 496-97. Here, the court presumes Horton will abide by the law and thereby avoid a return to CCJ. Accordingly, plaintiff lacks standing to seek injunctive relief.1

[*3] II. CONDITIONS OF CONFINEMENT

Plaintiff's complaint is little more than a laundry list of grievances regarding conditions at CCJ. Furthermore, several of the claims set forth in plaintiff's complaint deal with much the same facts and legal issues as in plaintiff's previous complaint in Horton v. Sheahan, et al., No. 94 C 6320. Both complaints, in rather vague and generalized terms, express plaintiff's frustrations with living in an overcrowded facility. More specifically, plaintiff protests having to sleep on the floor due to the lack of available beds and the back pain he experiences as a result; the denial of medical care for his cold; and the growing hostility and tension amongst inmates as a result of the crowded conditions. In an order dated November 1, 1994, this court denied plaintiff leave to file in forma pauperis and dismissed these claims pursuant to 28 U.S.C. § 1915(d). Dismissal of an action as frivolous under § 1915(d) is given preclusive effect as against claims raised in subsequent complaints presented for filing in forma pauperis. Hudson v. Hedge. 27 F.3d 274, 276 (7th Cir.), cert, denied. 130 L. Ed. 2d 547, 115 S.Ct. 641 (1994): see Besecker v. [*4] Illinois, 14 F.3d 309, 310 (7th Cir. 1994). Once a claim is dismissed on the merits, plaintiff cannot just turn around and launch another complaint asserting the same claim against the same defendants, or their privies, in the remote hope that he might fare better the second time around. Litigation is expensive and the courts must carefully manage their limited resources. A complaint that seeks to relitigate previously dismissed claims is frivolous within the meaning of $1915(d). See Cooper v. Delo, 997 F.2d 376, 377 (8th Cir. 1993): Pittman v. Moore, 980 F.2d 994, 995 (5th Cir. 1993): Crisafi v. Holland, 211 U.S. Add. D.C. 75, 655 F.2d 1305, 1309 (D.C.Cir. 1981): Phillips v. Carev. 638 F.2d 207, 209 (10th Cir.), cert. denied, 450 U.S. 985 (1981). Moreover, to allow plaintiff to proceed with a multiplicity of claims alleging inadequate and crowded conditions of confinement which have already been addressed by this court and dismissed on their merits is a waste of judicial time.

Furthermore, plaintiff, in filling out the civil rights complaint form for this action, stated that he had not begun any other lawsuits in federal court dealing with the same facts in this action, or that [*5] he had begun any other lawsuits in federal court whatsoever. Plaintiff signed the complaint swearing under penalty of perjury that the information it contained was true and correct. Plaintiff therefore committed perjury when he falsely answered the question regarding previous lawsuits on the complaint form. In so doing, he forfeited his right to proceed further on this action without prepayment of the filing fee. A court may deny a plaintiff leave to file in forma pauperis under 28 U.S.C. § 1915(d) if it determines that the complaint is frivolous or malicious. Cf. Warren v. Guelker. 29 F.3d 1386, 1390 (9th Cir. 1994) (Pro se plaintiff who falsely stated in complaint that he had never filed federal or state lawsuit concerning facts presently alleged and who "perpetrated a fraud upon the district court by lying about having brought the same action previously" is subject to Rule 11 sanctions). Malice can be inferred from a complaint that contains material factual misrepresentations or plainly abuses the judicial process. See Horsey v. Asher, 741 F.2d 209, 212 (8th Cir. 1984): Crisafi v. Holland, 211 U.S. Add. D.C. 75, 655 F.2d 1305, 1309 (D.C.Cir. 1981): Walton v. Fairman. 836 F. Sudd. 511. [*6] 515 (N.D.III. 1993). Plaintiff's denial of filing any prior cases, coupled with his attempt to relitigate several of the same claims, is sufficient indication of malice to support dismissal of this action under $1915(d). An indigent who boldly lies to a judge to gain entry to the courts cannot expect to reap the advantages of cost-free filing no matter what the merits of his suit.

Accordingly, finding plaintiff's perjury a malicious abuse of the court as well as the preclusive effect given to claims previously dismissed, the court denies Horton's motion for leave to file in forma pauperis and dismisses this action pursuant to 28 U.S.C. § 1915(d). See Neitzke v. Williams. 490 U.S. 319, 104 L. Ed. 2d 338, 109 S.Ct. 1827 (1989).

It is so ordered.

Reporter

192 Fed. Appx. 541; 2006 U.S. App. LEXIS 16317

WILLIE LASLEY, Plaintiff-Appellant, v. GEORGE C. WELBORN, et al., Defendants-Appellees.

Notice: [**1] RULES OF THE SEVENTH CIRCUIT COURT OF APPEALS MAY LIMIT CITATION TO UNPUBLISHED OPINIONS. PLEASE REFER TO THE RULES OF THE UNITED STATES COURT OF APPEALS FOR THIS CIRCUIT.

Prior History: Appeal from the United States District Court for the Southern District of Illinois. No. 03 C 313. James L. Foreman, Judge.

Disposition: AFFIRMED.

Counsel: For WILLIE LASLEY, Plaintiff — Appellant: James P. Chapman, Chicago, IL.

Judges: Before Hon. WILLIAM J. BAUER, Circuit Judge, Hon. DANIEL A. MANION, Circuit Judge, Hon. DIANE S. SYKES, Circuit Judge.

Opinion

[*542] ORDER

Willie Lasley, a former Illinois inmate, filed a pro se complaint under 42 U.S.C. § 1983 claiming that officials at Tamms Correctional Center denied him access to the courts and adequate medical care, interfered with his mail, and confiscated his belongings in retaliation for filing grievances. After eighteen months the district court finally screened his complaint, See 28 U.S.C. § 1915A. held that it is frivolous and fails to state a claim on which relief can be granted, and dismissed it with prejudice. More than ten days after entry of judgment, Lasley filed a "motion for reconsideration," arguing that his complaint [**2] is sufficient to give the defendants notice of his claims. Given the timing of the motion, the court correctly characterized it as one under Federal Rule of Civil Procedure 60(b). Easley v. Kirmsee, 382 F.3d 693, 696 n.2 (7th Cir. 2004); Talano v. Nw. Med. Faculty Found., 273 F.3d 757, 762 (7th Cir. 2001). And, since the motion did not raise any of the limited grounds for which Rule 60(b) provides relief, the court denied it. Lasley's present appeal is limited to a review of that denial.

Through newly retained counsel, Lasley now argues that he was entitled to relief under Rule 60(b)(4) because, in his view, the order dismissing his complaint is "void." Section 1915A does not authorize the dismissal, he argues, because that screening provision requires a court to evaluate a complaint "as soon as practicable after docketing," see 28 U.S.C. § 1915A(a). and here the court waited eighteen months to do so. As the complaint was never served on the prison officials, they did not participate in this appeal.

Counsel conceded during oral argument that Lasley's Rule 60(b) motion challenged [**3] only the merits of the dismissal and did not raise his present contention that the dismissal is void. Nevertheless, counsel asserted, a voidness argument can be raised at any time, in any court. Lasley has pointed to no authority, and we have found none, for this position. On the contrary, because his Rule 60(b) motion did not argue that the dismissal was void, he is precluded from now basing error on that contention. See Swaim v. Moltan Co., 73 F.3d 711, 717 (7th Cir. 1996) (stating that denial of Rule 60(b) motion is reviewed only on grounds raised in motion); Valdez v. Feltman (In re Worldwide Web Sys.), 328 F.3d 1291. 1301 (11th Cir. 2003) (explaining that appellant waived argument under Rule 60(b)(4) that judgment was void for lack of service by omitting that argument from his Rule 60(b) motion). Even had Lasley preserved the argument, however, [*543] we would reject it. Because Lasley was proceeding in forma pauperis, the court was required to "dismiss the case at any time" upon determining that his complaint was frivolous or failed to state a claim. See 28 U.S.C. § 1915(e)(2)(B)(i). (ii); DeWalt v. Carter. 224 F.3d 607, 611 (7th Cir. 2000). [**4] Thus, while § 1915A includes no explicit time limit (and we have found no case suggesting that there is one), it does not matter because § 1915(e)(2) authorized the action taken by the district court. See Gladney v. Pendleton Corr. Facility, 302 F.3d 773, 775 (7th Cir. 2002) (stating that dismissal for frivolousness under § 1915(e)(2)(B)(i) precludes future litigation of same claim).

AFFIRMED.

Reporter

339 Fed. Appx. 633; 2009 U.S. App. LEXIS 16808

CHRISTOPHER HOLLY, Plaintiff-Appellant, v. WEXFORD HEALTH SERVICES, INC., et al., Defendants-Appellees.

Notice: PLEASE REFER TO FEDERAL RULES OF APPELLATE PROCEDURE RULE 32.1 GOVERNING THE CITATION TO UNPUBLISHED OPINIONS.

Prior History: [**1] Appeal from the United States District Court for the Central District of Illinois. No. 07-CV-03196. Harold A. Baker, Judge.

Counsel: CHRISTOPHER HOLLY, Plaintiff-Appellant, Pro se, Keyesport, IL.

WEXFORD HEALTH SOURCES, INCORPORATED, Defendant — Appellee, Pro se, Peoria, IL.

HEALTH PROFESSIONALS LIMITED, Defendant Appellee, Pro se, Peoria, IL.

SALEH OBAISI, Defendant — Appellee, Pro se, Peoria, IL.

DOCTOR DAMEFF, Defendant — Appellee, Pro se, Peoria, IL.

Judges: Before RICHARD A. POSNER, Circuit Judge, JOHN L. COFFEY, Circuit Judge, DANIEL A. MAN I ON, Circuit Judge.

Opinion

[*634] ORDER

Former Illinois inmate Christopher Holly claims in this lawsuit under 42 U.S.C. § 1983 that during his incarceration he was denied necessary cataract surgery. [*635] The district court granted Holly leave to proceed in forma pauperis, but when it came to light that Holly had understated his assets in his petition, the court dismissed the case with prejudice. We affirm.

Holly is no stranger to filing lawsuits without having to foot the bill up front. While in prison, he took full advantage of the privilege afforded the indigent to litigate in federal court without prepaying filing and docketing fees in full. See 28 U.S.C. § 1915(a)(1). But after [**2] bringing too many frivolous claims, he lost this privilege in accordance with the Prison Litigation Reform Act, see id. § 1915(a). Holly v. Anton, 97 Fed. Addx. 39 (7th Cir. 2004): Holly v. Woolfolk, No. 03 C 2563 (N.D. III. May 15, 2003). Once Holly was released from prison in June 2007, however, the PLRA no longer applied to him, and he continued to file lawsuits, pleading indigence and asking the district courts to waive prepayment of the statutory fees.

On July 19, 2007, Holly filed the complaint in this case and petitioned the district court to proceed in forma pauperis. In an affidavit he signed on July 17 and attached to that petition, Holly averred under penalty of perjury that as of July 15, 2007, he had a balance of $166.20 in his business checking account and a negative balance of $73.94 in his personal checking account. He represented that he lived with his mother and that she was paying all of his living expenses. He also attested that he did "not receive any additional income and/or financial resources." On July 27, 2007, the district court granted the petition and allowed Holly to proceed without prepaying the filing and docketing fees.

The next month, in August [**3] 2007, Holly filed another § 1983 suit. He again represented that he was impoverished and asked the district court allow him to litigate without first paying the required fees. The court denied the motion and ordered Holly to pay the fees. Holly then sought to take an interlocutory appeal, and in September 2007 he moved to proceed in forma pauperis in this court. On the form he completed as part of his fee petition, he averred that he was self-employed and had 339 Fed. Appx. 633, *635; 2009 U.S. App. LEXIS 16808, **4 been receiving an average of $1,534 per month for the past 12 months. He also stated that he had invested much of the money that he received over the preceding three months to start a business. Bank records attached to the petition show that Holly's bank accounts were receiving a steady flow of funds, including two deposits totaling $539.25 on July 16, 2007 the day before he signed the financial affidavit in this case.

The defendants in this case got hold of the September 2007 fee petition and moved to dismiss on the basis that Holly had lied about his assets to avoid prepaying the fees. Holly responded by arguing that the motion was untimely, that any funds received after he filed the fee petition were irrelevant, and that [**4] he qualified for pauper status even considering the additional funds. He did not dispute the defendants' contention that he had lied about his financial condition. The district court found that, in light of Holly's admission in the September 2007 petition that he had been earning approximately $1,500 per month over the preceding 12 months, Holly had committed perjury by claiming to be indigent when he filed this lawsuit. The court dismissed the case with prejudice, explaining that a lesser sanction, such as requiring Holly to pay the fees or dismissing without prejudice, would constitute "no real sanction" and would be "insufficient to deter future deception and would be unfair to the defendants."

A district court may allow an indigent plaintiff to file a lawsuit without prepaying the required fees if the plaintiff submits an [*636] affidavit with a statement of his assets and attests that he is too poor to pay. See 28 U.S.C. § 1915(a)(1). The district court is required to dismiss the case, however, if at any time the court learns that the allegation of poverty is untrue. 28 U.S.C. § 1915(e)(2)(A). We review for clear error the district court's finding that Holly falsely insisted that he [**5] was indigent. See Thomas v. GMAC, 288 F.3d 305, 306, 308 (7th Cir. 2002). The court's choice to dismiss with prejudice-instead of without—constitutes a sanction for the filing of a false application, and we review that decision for abuse of discretion. See id.

Holly first argues, as he did in the district court, that the defendants moved to dismiss too late because the court-ordered deadline for submitting dispositive motions had already passed. But the timing of the defendants' motion, and indeed the motion itself, is irrelevant. Section 1915(e)(2)(A) requires a court to dismiss the complaint "at any time" if it determines that the plaintiff's assertion of poverty is untrue. Thus, a court confronted with a false allegation of poverty need not wait for a motion to dismiss and can apply 1915(e)(2)(A) sua sponte. See In re Prison Litigation Reform Act, 105 F.3d 1131, 1138 (6th Cir. 1997); see also Thomas, 288 F.3d at 306 (explaining that where the "allegation of poverty was false, the suit had to be dismissed; the judge had no choice"). Once the district court learned that Holly's fee petition in another lawsuit contradicted his assertion of poverty in this [**6] case, the court had the responsibility to determine whether Holly accurately reported that he is too poor to prepay the fees, and if Holly lied, to dismiss the case.

Holly also argues that, in fact, he could not afford to pay the fees when he submitted his financial affidavit and that assets he received later are irrelevant. But Holly's blanket assertion that he was indigent when he filed his fee petition ignores the issue at the heart of the district court's decision: two months after stating under oath in this case that he had no source of income or financial resources, Holly admitted that, at the time he filed the petition, he was receiving substantial funds. Holly has never squared his statement in the September 2007 petition that he had been earning roughly $1,500 monthly for the past 12 months and had accumulated enough over three months to start a business with his assertion that he was receiving no income in July 2007. Moreover, Holly never explained why he failed to tell the district court about the $539.25 that was deposited into his account the day before he signed his financial affidavit in this case. And contrary to Holly's contention that he had no obligation to tell [**7] the court about income he received after he filed his petition, he did have a duty to inform the court when his financial situation improved. See Thomas, 288 F.3d at 306 (upholding district court's decision to dismiss with prejudice in part because plaintiff had failed to update his pauper application after receiving retirement benefits). Thus the district court's finding that Holly falsely claimed to be indigent is not clearly erroneous.

That brings us to whether the district court acted within its discretion in dismissing the case with prejudice. Holly contends that the record is devoid of evidence that he acted in bad faith, so, he says, the district court's sanction is too harsh, or, at the very least, the court should have granted him an evidentiary hearing before imposing it. But there is plenty of evidence that Holly intentionally hid from the court the fact that he was receiving income. And we cannot say that the court abused its discretion in concluding that this was the most appropriate sanction for Holly's mendacity. Furthermore, [*637] Holly had no right to an evidentiary hearing. He had the opportunity in his brief to the district court to explain the discrepancies between the [**8] two fee petitions, but he did not identify any material factual dispute warranting an evidentiary hearing. See Wozniak v. Corny, 236 F.3d 888, 890 (7th Cir. 20011 We therefore AFFIRM the district court's judgment. Holly's motion for appointment of counsel is DENIED.

Reporter

2011 U.S. Dist. LEXIS 21345; 2011 WL 826802

DWIGHT FREEMAN, Plaintiff, v. ED VOORHEIS, WARDEN, et al., Defendants.

Subsequent History: Adopted by, Objection overruled by, Motion granted by, Complaint dismissed at, Dismissed without prejudice by Freeman v. Voorhies. 2011 U.S. Dist, LEXIS 21343 (S.D, Ohio. Mar. 3, 2011)

Prior History: Freeman v. Voorhies, 2008 U.S. Dist. LEXIS 1177 (S.D. Ohio. Jan. 8, 2008)

Counsel: [*1] Dwight Freeman, Petitioner, Pro se, Youngstown, OH.

For Ed Voorhies, Warden, Respondent: J. Eric Holloway, LEAD ATTORNEY ATTORNEY TO BE NOTICED, Ohio Attorney General's Office, Criminal Justice Section, Columbus, OH; Marianne Pressman, LEAD ATTORNEY ATTORNEY TO BE NOTICED, Butler County Sheriffs Office, Hamilton, OH; Ryan G. Dolan, Attorney General of Ohio, Columbus, OH.

For Ed Voorhies, Warden, C/O Mitchell, Sgt Fields, C/O Carter, C/O Bauer.

Judges: Stephanie K. Bowman, United States Magistrate Judge.

Opinion by: Stephanie K. Bowman

Opinion

Beckwith, J.

Bowman, M.J.

REPORT AND RECOMMENDATION

Pursuant to local practice, this pro se prisoner litigation has been referred to the undersigned magistrate judge for review and a Report and Recommendation concerning pending motions. Defendants have filed a motion for summary judgment (Doc. 74), a motion seeking an order to supplement that motion (Doc. 75), and recently, a motion seeking an order to revoke Plaintiff's in forma pauperis status (Doc. 80). After a review of the record, I conclude that this litigation should be dismissed sua sponte based upon Plaintiff's knowing misrepresentations to this court concerning his prior litigation history, absent immediate payment of the [*2] requisite filing fee. In light of the recommended dismissal on that basis, I further recommend that Defendants' motion for summary judgment be denied as moot.

I. Background

Plaintiff Dwight Freeman first attempted to sue the Defendants in this case on September 22, 2006, when he filed a complaint and motion for preliminary injunction/temporary restraining order in this Court. See Freeman v. Voorheis, Case No. 1:06-cv-622-SSB-TSH. Portions of Plaintiff's 2006 complaint were dismissed with prejudice for failure to state a claim, pursuant to 28 U.S.C. 81915(e) and 28 U.S.C. S1915A. (Id., Doc. 11 at 2-3, 8). However, the remainder of Plaintiff's complaint was dismissed based upon Plaintiff's failure to exhaust his administrative remedies. (Id. at 8-9).

In accordance with the Prison Litigation Reform Act of 1995 ("PLRA"), Plaintiff was directed to pay the full filing fee of $350.00, with incremental payments to be made at any time that Plaintiff's institutional account balance exceeded $10.00. (Id. at Doc. 10). The Court held that "[i]n the event plaintiff chooses to file a new complaint after he exhausts his administrative remedies, he will not be required to pay an additional filing fee." [*3] (Id., Doc. 11 at 8). The record reflects that Plaintiff has paid a total of $86.45 of the $350 filing fee on Case No. 1:06-cv-622-SSB-TSH, with the last payment of $1.41 received on June 18, 2010.

On January 22, 2007, Plaintiff filed a new complaint that included most of the same allegations as those alleged in the 2006 complaint, with additional allegations pertaining to Plaintiff's exhaustion of administrative remedies. The complaint was assigned a new case number, as reflected in the above caption. Noting that most of the claims constituted a refiled action in compliance with this Court's Order of October 19, 2006 in Case No. 1:06-cv-622-SSB-TSH, the Court denied Plaintiff's new motion for leave to proceed in forma pauperis as moot, presuming that Plaintiff would continue making incremental payments in the original Case No. 1:06-cv-622-SSB-TSH. (Doc. 5).

In recognition that some claims were new, the Court nevertheless reviewed the new complaint to determine if any claims should be dismissed as frivolous, malicious, or for failure to state a claim. The Court determined that one claim, against Defendant Dr. Sevrey, should be dismissed for failure to state a claim, but that various Eighth Amendment [*4] claims against the remaining five named Defendants should be permitted to proceed. (Id.). An active discovery period ensued, with Plaintiff filing multiple motions to compel and other pretrial motions, many of which were address through an informal discovery conference with the Court. (Doc. 57). Following the close of discovery on March 26, 2010, Defendants moved for summary judgment (Doc. 74).

On December 6, 2010, this case was reassigned to the undersigned magistrate judge. (Doc. 78). On December 28, 2010, Defendants moved to revoke Plaintiff's in forma pauperis status under the Prison Litigation Reform Act (Doc. 80). Plaintiff has failed to file any response to that motion.

II. Analysis

Defendant's motion to revoke Plaintiff's in forma pauperis status is based upon 28 U.S.C. § 51915(g). which states:

Id.

This "three strike" provision was enacted as one of several amendments in the Prison Litigation Reform Act to prevent prisoners from repeatedly filing frivolous litigation. Courts have upheld the application of § 51915(g) to cases dismissed prior to the enactment of the PLRA. See Wilson v. Yaklich, 148 F.3d 596. 603 (6th Cir. 1998). In addition, the Sixth Circuit has held that when a portion of a complaint is dismissed with prejudice for failure to state a claim, that dismissal qualifies as a strike under § 51915(g) even if other claims in the complaint are dismissed without prejudice for failure to exhaust. See Pointer v. Wilkinson. 502 F.3d 369 (6th Cir. 2007); but see, e.g., Thompson v. Drug Enforcement Admin. 492 F.3d 428, 377 U.S. Add. D.C. 129 (C.A.D.C. 2007) (action containing at least one non-frivolous claim does not count as strike); Turley v. Gaetz. 2010 U.S. Add. LEXIS 21200, 2010 WL 4008727 (7th Cir. 2010) (same).

When he filed the instant litigation, Plaintiff twice represented to this Court, under penalty of perjury, that he had not previously had any case dismissed on grounds that it was frivolous, malicious, or [*6] failed to state a claim. See Case No. 1:06-cv-622 (Doc. 6 at 4); Case No. 1:07-cv-41 (Doc. 1 at 4). However, Defendants now assert, and court records confirm, that Plaintiff has had at least three cases previously dismissed in whole or in part for failure to state a claim. Defendants have identified the previously dismissed cases as follows:

1. Dwight Freeman v. Gee, Case NO. 1:00-cv-3148-KMO (Doc. 10, dismissing for failure to state a claim pursuant to 28 U.S.C. 51915(e));

2. Dwight Freeman v. Voorhies, Case No. 1:06-cv-622-SSB (Doc. 11, dismissing, in part, for failure to state a claim, but permitting refiling of some claims following exhaustion of administrative remedies);

3. Dwight Freeman v. Wilkerson, Case No. 1:96-cv-2260-KMO (Doc. 4, dismissing for failure to state a claim pursuant to 28 U.S.C. 51915(e)).

In addition to these three cases, this Court takes judicial notice of a fourth case, Dwight Freeman v. Wilkinson, Case No. 1:98-cv-362-SAS, in which Judge Spiegel dismissed numerous claims for failure to state a claim upon initial screening of the complaint. (Id. at Doc. 6, Memorandum Order dated 7/7/98). All four of the above cases involve dismissals that occurred prior to the

[*7] filing of the instant complaint.1 Therefore, Plaintiff's attestation that he had not had any prior cases dismissed as frivolous or for failure to state a claim is perjurious.

In Freeman v. Wilkerson, Civil Action No. 2:05-cv-1085, Magistrate Judge Mark Abel recently denied Plaintiff's motion for leave to appeal in forma pauperis the court's entry of judgment in favor of the defendants.2 (Id., Doc. 200). In denying Plaintiff leave to appeal in forma pauperis in that case, Judge Abel applied the "three strikes" rule of 28 U.S.C. § 81915(g). referencing the first three listed cases. Judge Abel subsequently denied Plaintiff's motion for reconsideration. (Id., Doc. 204, also available at 2011 U.S. Dist. LEXIS 1936, 2011 WL 94604 (S.D. Ohio Jan. 10, 2011)).

Plaintiff clearly is no stranger to federal litigation. Court records available from PACER reveal that Plaintiff has filed 18 civil actions in the federal courts of Ohio. Plaintiff also has filed four appeals with the Sixth Circuit Court of Appeals, two of which remain pending.3 See Green v. Nottingham, 90 F.3d 415 (10th Cir. 7996)(taking judicial notice of prior litigation).

Plaintiff's litigation history is relevant to the extent that he should be held to a knowing standard concerning representations that he has not had prior cases dismissed for failure to state a claim. However, the mere fact that Plaintiff is litigious does not warrant dismissal under § 1915(g): rather, dismissal is appropriate only when a litigant has three or more "strikes" within the terms of the statute. Having examined court records regarding this Plaintiff's litigation history, I conclude that dismissal is warranted. In cases in which § 81915(g) applies, a prisoner may not proceed in forma pauperis "unless [*9] the prisoner is under imminent danger of serious physical injury" at the time the complaint is filed. No such "imminent danger" is either alleged or apparent on the face of the complaint filed in this case. Therefore, Plaintiff's in forma pauperis status should be revoked, and this case should be dismissed absent immediate payment of the full $350.00 filing fee. Because Plaintiff previously paid $86.45 in Case No. 1:06-cv-622-SSB, Plaintiff should be permitted to proceed if he immediately makes payment of $263.55.

Separate and apart from the provisions of § 81915(g), Plaintiff's false statements in his applications to proceed in forma pauperis provide an additional basis for dismissal of this litigation as "malicious" under 28 U. S.C. 81915(e)(2)(B)(1). See, e.g., Horton v. Thomas. 1996 U.S. Dist. LEXIS 1608, 1996 WL 68013 (N.D. III. Feb. 14, 1996) (Dismissing suit because "[a]n indigent who boldly lies to a judge to gain entry to the courts cannot expect to reap the advantages of cost-free filing no matter what the merits of his suit."); Walton v. Fairman. 1993 U.S. Dist. LEXIS 4157, 1993 WL 96427at *4 (N.D. III. April 1. 7993)(dismissinq Plaintiff for attempting to deceive the court regarding prior litigation history); Garland v. O'Grady, 1988 U.S. Dist. LEXIS 12370, 1988 WL 118879 at *2-3 (N.D. III. Nov. 3, 1988) (by [*10] failing to list prior lawsuits, inmate "perjured himself). See also, generally Warren v. Guelker, 29 F.3d 1386, 1390 (9th Cir. 1994) (Rule 11 applies to false statements by prisoner regarding litigation history); Horsey v. Asher. 741 F.2d 209, 212 (8th Cir. 1984) (complaint is malicious if Plaintiff makes false statements with intent to deceive the court).

It is true that the provisions of § 81915(g) are not jurisdictional. It is likewise an unfortunate fact that this case has now been pending for more than three years. However, the fact that Plaintiff's false statements regarding his prior litigation have gone undetected until now should not prevent this Court from enforcing the statute as Congress intended. Trickery and perjury should not be rewarded with free entry into this Court. In the alternative, to the extent that the presiding district judge prefers to address this litigation on the merits in light of Defendants' fully briefed motion for summary judgment, the undersigned would recommend denial of Defendants' motion. Defendants readily admit that they used force on Plaintiff on August 24, 2006 and a second time on August 27, 2006. Their motion is predicated on the argument that [*11] the use of force was necessary to protect themselves and colleagues "from Freeman's overt acts of aggression." (Doc. 74 at 2). While the evidence offered by Defendants in support of their motion is strong, it is not so overwhelming to entitle the Defendants to judgment without a trial. Though Plaintiff's affidavit may be the lone evidence in his favor, and despite the fact that he perjured himself in denying the dismissal of prior frivolous litigation, Plaintiff's allegations that Defendants inflicted bodily harm without justification are not so incredible, nor his alleged injuries so minor, that this Court may dismiss his story out of hand. But contra Reist v. Orr, 67 F.3d 300 (6th Cir. 1995) (Table. text available on Westlaw, affirming summary judgment where plaintiff's affidavit could not withstand "barrage of unrefuted evidence"). Eighth Amendment claims involving physical altercations between a prisoner and his guards are rarely resolved through pretrial motion practice. In this case as in most, resolution depends upon credibility determinations that can only be made at trial.

III. Conclusion and Recommendations

Accordingly, for the reasons stated herein, IT IS RECOMMENDED THAT:

1. [*12] Defendants' motion to revoke Plaintiff's in forma pauperis status and to compel Plaintiff to pay the filing fee (Doc. 80) should be GRANTED;

2. Plaintiff's in forma pauperis status should be REVOKED, effective immediately. Absent payment of $263.55, representing the remaining portion of the $350.00 filing fee owed on 1:06-cv-622-SSB, on or before March 1, 2011, this case should be DISMISSED WITH PREJUDICE;

3. Defendants' motion to supplement their summary judgment motion to include a signed affidavit (Doc. 75) should be GRANTED in the interest of compiling a complete record;

4. In light of the recommended revocation of Plaintiff's in forma pauperis status and dismissal of this litigation absent payment of the filing fee, Defendants' underlying motion for summary judgment (Doc. 74) should be DENIED AS MOOT. Alternatively, to the extent that Plaintiff timely submits payment of the filing fee prior to March 1 so as to maintain prosecution of this lawsuit, Defendants' motion for summary judgment should be DENIED because a genuine issue of material facts remains on Plaintiff's Eighth Amendment claims.

/s/ Stephanie K. Bowman

Stephanie K. Bowman

United States Magistrate Judge

NOTICE

Pursuant to [*13] Fed. R. Civ. P. 72(b), any party may serve and file specific, written objections to this Report & Recommendation ("R&R") within FOURTEEN (14) DAYS of the filing date of this R&R. That period may be extended further by the Court on timely motion by either side for an extension of time. All objections shall specify the portion(s) of the R&R objected to, and shall be accompanied by a memorandum of law in support of the objections. A party shall respond to an opponent's objections within FOURTEEN (14) DAYS after being served with a copy of those objections. Failure to make objections in accordance with this procedure may forfeit rights on appeal. See Thomas v. Am, 474 U.S. 140, 106 S.Ct. 466, 88 L. Ed. 2d 435 (1985); United States v. Waiters. 638 F.2d 947 (8th Cir. 1981).

[SEE Domestic Return Receipt IN ORIGINAL]

Reporter

2011 U.S. Dist. LEXIS 105397; 2011 WL 4026645

RASHAD LEE, #213823, Plaintiff, vs. DEBORAH TONEY, et al., Defendants.

Subsequent History: Adopted by, Dismissed by Lee v. Toney, 2011 U.S. Dist. LEXIS 102627 (S.D. Ala., Sept. 12, 2011)

Counsel: [*1] Rashad Lee, Plaintiff, Pro se, Atmore, AL.

Judges: Bert W. Milling, Jr., UNITED STATES MAGISTRATE JUDGE.

Opinion by: Bert W. Milling, Jr.

Opinion

REPORT AND RECOMMENDATION

Plaintiff, an Alabama prison inmate proceeding pro se and in forma pauperis, filed a Complaint under 42 U.S.C. § 1983. This action has been referred to the undersigned for appropriate action pursuant to 28 U.S.C. ¶ 636(b)(1)(B) and Local Rule 72.2(c)(4). After careful consideration, it is recommended that this action be dismissed with prejudice, prior to service of process, pursuant to 28 U.S.C. § 1915(e)(2)(A) and Rules 11(b) and 41(b) of the Federal Rules of Civil Procedure, that the Court retain the partial filing fee of $28.00, and that the dismissal of this action count as a strike for the purpose of 28 U.S.C. § 1915(g) because it is malicious.

I. Nature of Proceedings.

A. Posture of Action.1

This action is before the Court on the responses of Plaintiff (Docs. 14, 15) and the Alabama Department of Corrections ("ADOC") (Doc. 18) to the Court's show cause orders. (Docs. 13, 17). On November 12, 2010, the Court ordered Plaintiff to show cause why this action should not be dismissed and sanctions imposed for his signing and submitting three Motions to Proceed Without Prepayment of Fees (Docs. 2, 5, 7) in this action that appeared inconsistent and untruthful. (Doc. 13); see 28 U.S.C. § 1915(e)(2)(A) ("Notwithstanding any filing fee, or any portions thereof, that may have been paid, the court shall dismiss the case at any time if the court determines that the allegation of poverty is untrue[.]"). This show cause order came about at the time the Court screened Plaintiff's Amended Complaints (Docs. 4, 10) and examined Public Access to Court Electronic Records ("PACER") for other actions filed by Plaintiff as he did not indicate in either his original Complaint or Amended Complaints that he previously [*4] filed any actions. During its review the Court discovered several actions filed by Plaintiff, but they did not qualify Plaintiff's present action for treatment under 28 U.S.C. § 1915(g).

However, the Court did discover Rashad Lee v. Mills, et al., CA 2:09-CV-602-WHA (WO), 2009 U.S. Dist LEXIS 123488, 2010 WL 320300 (M.D. Ala. Jan. 20, 2010). which was dismissed pursuant to 28 U.S.C, § 1915(e)(2)(A) because the printouts attached to Plaintiff's in forma pauperis requests were found not to be generated by the correctional institution, and Plaintiff belatedly informed the court of receiving money from other sources during the prior twelve months. 2009 U.S. Dist. LEXIS 123488, IWL1 at *3-*4. The dismissal was with prejudice and was ordered to be treated as a strike under 28 U.S.C. § 1915(g) due to Plaintiff's persistence in submitting false information to the court. 2009 US. Dist. LEXIS 123488. IWL1 at *4. In light of the Middle District's decision, this Court then undertook a second review of Plaintiff's Motions to Proceed Without Prepayment of Fees (Docs. 3, 5, 7) filed in this action.

B. The Initial Dispositions of Plaintiff's Motions to Proceed Without Prepayment of Fees.

In the present action, Plaintiff's first Motion to Proceed Without Prepayment of Fees ("first Motion"), filed [*5] on July 26, 2010, was on an outdated form and had attached an institutional printout dated May 24, 2010 with financial information only for two months, April and May, instead of for the six months preceding the filing date of July 26, 2010, and an empty institutional certificate. (Doc. 2). As a result, Plaintiff was ordered to file a new motion on the Court's current form. (Doc. 3).

The second Motion to Proceed Without Prepayment of Fees ("second Motion"), filed on August 5, 2010, had attached an institutional printout reflecting deposits from April to August 2, 2010 and an empty institutional certificate. (Doc. 5). Due to the absence of a certificate completed by an institutional officer, Plaintiff was ordered to file a third Motion to Proceed Without Prepayment of Fees. (Doc. 6).

The second Motion also reflected that Plaintiff has three children to whom he contributes $150 monthly. (Doc. 5 at 1). This information was omitted from his first Motion.

In the third Motion to Proceed Without Prepayment of Fees, Plaintiff attached the same institutional printout that he had attached to his second Motion with Atmore Community Work Center in the caption, which reflected deposits from April to [*6] August 2, 2010. (Doc. 7 at 6). The newly submitted certificate was completed by Ms. Spates at J.O. Davis Correctional Facility ("J.O. Davis"). (Id. at 5).

Having spent an excessive amount of time in an attempt to assist Plaintiff in having a motion to proceed without prepayment of fees that complied with 28 U.S.C. § 1915(a). the Court, using the information available, ordered Plaintiff to pay a partial filing fee of $27.56. (Doc. 8). Plaintiff paid $28.00. (Doc. 12).

Once the partial filing fee was paid, the Court discovered Lee v. Mills, supra, in which the Middle District court determined that Plaintiff had deliberately falsified his financial information for the purpose of circumventing the assessment of the partial filing fee. (Doc. 30 at 7). The Middle District court, after allowing Plaintiff and ADOC to address the issue, dismissed the action with prejudice pursuant to § 1915(e)(2)(A). concluding that the printouts submitted by Plaintiff were not generated by ADOC, and ordered that the dismissal be counted as a strike due to Plaintiff's persistence in submitting false information to the court. Id. 7-8.

C. A [*7] Second Review of Plaintiff's Motions to Proceed Without Prepayment of Fees.

In light of the information from the Middle District court, the Court conducted a second review of Plaintiff's Motions to Proceed Without Prepayment of Fees. In reviewing Plaintiff's second Motion, this Court, from its years of experience in prisoner litigation, discerned that an alteration in the numerals had occurred, particularly when compared with the printout submitted with the first Motion (Doc. 2). That is, some of the dollar signs were absent and the large May monthly deposit of $1,576.56 in the first Motion's printout was absent in the second Motion's printout which only reflected "576.57" for May. (Id. at 6). Additionally, the second printout did not bear the signature of a prison official, which the first printout had. (Id.). Then in the third Motion (Doc. 7) the certificate, which was completed by Ms. Spates at J.O. Davis (which indicated to the Court that Plaintiff had been transferred), was dated August 31, 2010 and had calculations based on a twelve-month history. (Id. at 5). However, a printout to support these calculations for twelve months was not submitted by Plaintiff. Instead, Plaintiff [*8] resubmitted the second printout which did not correspond with the certificate, contained the same alterations, and bore a caption indicating that it was generated at Atmore Community Work Center. (Id. at 7).

Based on the Court's second review of Plaintiff's Motions, it is readily apparent that the Court has not received a printout for the six months preceding the filing of the complaint on July 26, 2010. And the only certificate that was completed by an institutional official is found in the third Motion, which was prepared after Plaintiff was transferred to J.O. Davis and then it was done for twelve months prior to August 31, 2010. (Doc. 7 at 5).

D. Show Cause Orders and Responses Thereto.

Based on the Court's experience with prisoner actions wherein the overwhelming majority of inmates readily obtain financial information for filing an in forma pauperis request from their respective institutions and in an orderly manner, and in light of the Middle District decision in Plaintiff's prior action and this Court's discovery of apparent alterations in Plaintiff's institutional printout, the Court entered an order for Plaintiff to show cause why his action should not be dismissed for his untruthful [*9] representations to the Court in his Motions to Proceed Without Prepayment of Fees; why sanctions should not be imposed beyond the dismissal of this action without prejudice for signing his Motions that contained false information under penalty of perjury and for violating Rule 11 (b) of the Federal Rules of Civil Procedure; and why a criminal sanction should not be imposed pursuant to 18 U.S.C. § 1623. (Doc. 13 at 6).

In Plaintiff's first response to the show cause order (Doc. 14), which is twenty pages, he asserts numerous reasons, some of which the Court will briefly reiterate. Plaintiff asserts: (1) a conspiracy existed between the business clerk and defendants either directly or through officers; (2) he and other inmates do not have access to photocopying machine to make alterations and officials will not make copies for them; (3) he advised the Commissioner in a letter about Warden Toney, Patricia Myers, and business clerks trying to keep him from filing this action, particularly before the warden's probationary period expired, and the problems he was having with the business office to print his PMOD account (Id. at 9-18); (4) his first Motion was the true motion reflecting the [*10] true amount in his account at the time; (5) his first Motion shows that he had not intended to defraud the court because the clerk signed and dated it and he then sent it to the court; (6) the administration denied his requests for subsequent printouts because the warden was not wanting any lawsuits filed during her probationary period; (7) it was not his fault the financial information was for only two months because he had only been transferred to Atmore Work Center in April, 2010 and ADOC policy only allows the institution to print the amount deposited at that institution; (8) $1,576.57 was transferred from Ventress Correctional Facility where he had been incarcerated for the previous four years; (9) in regard to Plaintiff's second Motion and printout, it was given to him by another inmate because the warden had been told that Plaintiff would be filing numerous claims against her; (10) the business clerk would not sign the printout because she had already signed the first one and then he did not check it; (11) Plaintiff denies altering any documents because it would have been ludicrous to do so when the correct amount was already on file; (12) while in segregation Plaintiff inadvertently [*11] omitted that he has children and states that he is sent money by his family and hustles in prison by litigating cases and drafting motions for "hygiene [products], food, and [etc.]" (Id. at 5); (13) Valerie Spates signed and printed the PMOD history of Plaintiff and any error therein is a result of a conspiracy with Patricia Meyers, Warden Meyers, and her; (14) there is a conspiracy to keep him in prison by the prosecutor, judge, and wardens altering his trial transcripts and other things on file; and (15) Plaintiff will "pay the fee in it[s] entirety or whatever the court deems necessary [to] serve the defendants" (Id. at 7).

In Plaintiff's second response to the show cause order filed on January 6, 2011 (Doc. 15), he requests that Court to take judicial notice of his other action in this Court, No. 10-0661-KD-N, wherein he was ordered to pay a partial filing fee but was unable to because Warden Meyers would not allow a withdrawal to occur "although the request [was] mailed to the court clerk, without the institutional check enclosed[.]" (Id. at 2). His parents were assured that it would be paid before the January 22, 2011, deadline. (Id. Plaintiff reiterates his allegation of a [*12] conspiracy between Warden Meyers, his present warden, and Patricia Meyers, the warden's wife who is located at work release, to have his action dismissed. (Id.).

After considering Plaintiff's responses to the Court's show cause order, the Court ordered the business manager at work release and at J.O. Davis to respond with a sworn affidavit stating whether the Plaintiff's institutional printouts (Docs. 2, 5, 7) were generated by the business office and whether there were any alterations in the printouts, and explaining any discrepancies with respect to the actual deposits, monthly balance, and average monthly deposits for the six-month period immediately proceeding the Complaint's filing on July 26, 2010. (Doc. 17 at 2-3). They were also ordered to file a printout reflecting the deposits into Plaintiff's inmate account, the average monthly balance, and the average monthly deposits for the six months prior to July 26, 2010 and a completed certificate from the Court's form for a motion to Proceed Without Prepayment of Fees. (Id. at 3).

ADOC responded to the Court's order with sworn affidavits from Vicki Hardy, Account Clerk, at work release, and Valeria Spates, PMOD Clerk, at J.O. Davis [*13] and with the requested documents. (Doc. 18). Ms. Hardy states that the printout "As of 08-02-2010," which is attached to the second Motion, was generated by ADOC but was defaced. (Doc. 18-1 at 1). After reprinting the printout, she explained the variations in the figures contained Plaintiff's printout submitted to the Court and the figures generated from her computer, and attached a copy of a printout for monthly deposits as of August 2, 2010, a twelve-month printout from Atmore Work Release Center, and an institutional certificate. (Id. at 1-2).

In regard to the monthly deposits for Plaintiff, the figures from the printout attached to Plaintiff's second Motion and from the printout submitted by ADOC are reflected below:

Compare Doc. 5 at 6, with Doc. 18-1 at 3. Ms. Hardy's affidavit identifies the numeral 1 in the May figure in the second printout submitted by Plaintiff as being defaced, that is, the ADOC figure of $1,576.57 for May was changed to "576.57," and the August figure in the second printout submitted by Plaintiff was changed from the ADOC [*14] figure of $1.39 to "$0.00." (Doc. 18-1 at 2).

In regard to the average daily balances for Plaintiff, the below figures are from the foregoing printouts:

Compare Doc. 5 at 6, with Doc. 18-1 at 3. Ms. Hardy's affidavit identifies the numeral 1 in the June, July, and August figures in the second printout submitted by Plaintiff as being defaced, that is, ADOC's figure of $1,463.09 for June was changed to "463.09, ADOC's figure of $1,438.21 for July was changed to "438.21," and ADOC's figure of $1,433.84 for August was changed to "438.10," and ADOC's August figure was further changed by having the numeral 3 changed to the numeral "8" and having 84 changed to *.10.* (Doc 18-1 at 1).

In regard to the third Motion to Proceed Without Prepayment of Fees, Valerie Spates, J.O. Davis's PMOD Clerk, submitted her affidavit stating that the signature on the Motion's certificate is hers. (Doc. 18-2 at 1). She does not recall if she correctly recorded the amounts because on May 16, 2011, when she ran a printout of Plaintiff's account as of August 31, 2010, "the computer [*15] screen show[ed], `No Records Found Within The Last 12 Months." id. She then attached a copy of the documents that she generated on May 16, 2011, which indicate no records were found within the last 12 months for Plaintiff. (Id. at 3-4).

Nevertheless, the printout attached to Plaintiff's third Motion is the same printout that he attached to his second Motion, and is not a printout that was generated at J.O. Davis, nor is it the printout generated by Ms. Spates on May 16, 2011. (Id. at 3-5). Furthermore, in writing this Report and Recommendation, the Court reviewed the hard copy of Plaintiff's second and third Motions again, and finds the actual printouts attached to Plaintiff's second and third Motions to be a photocopy reflecting smudge marks where some of the numerals and dollar signs were obliterated.

II. Analysis.

In filing the present action Plaintiff has subjected himself to the rules of the Court. Moon v. Newsome, 863 F.2d 835, 837 (11th Cir.) (a pro se litigant "is subject to the relevant law and rules of court including the Federal Rules of Civil Procedure"), cert. denied, 493 U.S. 863. 110 S.Ct. 180, 107 L. Ed. 2d 135 (1989), Rule 11(b) of the Federal Rules of Civil Procedure states:

In reviewing Plaintiff's responses to the Court's show cause order, the Court concludes that the Motions were filed for the improper purpose of circumventing the payment of a larger partial filing fee and that Plaintiff still does not accept complete responsibility for the content of his second and third Motions. Plaintiff is an experienced litigator in federal court as evidenced by him having filed six actions prior to filing this action, according to PACER, and to his statement that he "HUSTLES in prison i[.e.,] litigate cases and draft motions for hygiene [products], food, and [etc.]" (Doc. 14 at 5). Thus, Plaintiff was sufficiently skilled that he could have brought to the Court's attention matters in his Motions that needed an explanation or problems that he was having in obtaining information. Nevertheless, he [*17] did not do so and belatedly offers a myriad of explanations, which fall short of demonstrating that the printouts with the second and third Motions are an accurate copy of the printout of his inmate account. In fact, Plaintiff essentially admits that these two printouts are false by his explanation that the printout filed with his first Motion was true. (Doc. 14 at 2).

Instead, the Court finds, after its careful review of the printouts submitted by Plaintiff and the printouts filed in ADOC's response, that Plaintiff has altered a printout from the ADOC and submitted it twice to this Court. It perplexes the Court that Plaintiff submitted this altered printout twice considering that at the time he filed this action on July 26, 2010, his action in Lee v. Mills, supra, had been dismissed with prejudice on January 20, 2010, pursuant to 28 U.S.C. § 1915(e)(2)(A) for filing false information with his IFP requests, which also earned him a strike under 28 U.S.C. § 1915(a).

Rule 11(b) of the Federal Rules of Civil Procedure "forbids lying in pleadings, motions, and other papers filed with the court." Zocaras v. Castro, 465 F.3d 479, 484 (11th Cir.). cert, denied. 549 U.S. 1228, 127 S.Ct. 1300, 167 L. Ed. 2d 113 (2007): Fed.R.Civ.P. 11(b). [*18] Rule 11(b) also requires that "reasonable inquiries [be made] into the veracity of information filed before the court and to advise the court of any changes." Attwood v. Sinaletary, 105 F.3d 610, 613 (11th Cir 1997)2 Fed.R.Civ.P. 11(b). And Rule 11(b) forbids the practice of imposing a pleading for an improper purpose "such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation." Fed.R.Civ.P. 11(b).

Rule 11(c) provides sanctions for "misrepresentations made in papers filed with the court under Rule 11(b)." Fed.R.Civ.P. 11(c). These sanctions are limited to what [*20] "deters repetition of the conduct or comparable conduct by others similarly situated[, which] include[s] nonmonetary directives [or] an order to pay a penalty into court[.]" Fed.R.Civ.P. 11(c)(4). Furthermore, Rule 41(b) "provides for dismissal with prejudice as the ultimate sanction for violation of the rules." Zocaras. 465 F.3d at 484: Fed.R.Civ.P. 41(b). Not only can the Court sanction conduct under the Federal Rules of Civil Procedure, it has the inherent power "by the control necessarily vested in courts to manage their own affairs so as to achieve the orderly and expeditious disposition of cases." Link v. Wabash R. Co., 370 U.S. 626; 630-31. 82 S.Ct. 1388, 1389, 8 L.Ed.2d 734 (1962); cf. In re McDonald, 489 U.S. 180, 184, 109 S.Ct. 993, 996, 103 L.Ed.2d 158 (1989) (Because every paper filed with the Court requires some part of its limited resources, the "Court's responsibility is to see that these resources are allocated in a way that promotes the interests of justice."). And Congress enacted 28 U.S.C. § 1915(e)(2)(A) which provides for the dismissal of an action at any time the Court finds that "the allegation of poverty is untrue" regardless of whether the filing fee or any [*21] portion of it has been paid. 28 U.S.C. § 1915(e)(2)(A). Moreover, because Plaintiff signed his Motions under penalty of perjury, he could be subject to criminal prosecution for making false statements in these Motions.

Despite Plaintiff's assertions to the contrary, it is clear that he has submitted false printouts with his second and third Motions that do not accurately reflect the financial activity in his prisoner account for the six months preceding the filing of the Complaint. In light of this finding, it is apparent to the Court that Plaintiff intended to circumvent paying the correct partial filing fee when he filed two printouts that had been altered to reflect lesser amounts of funds in his prisoner account (Docs. 5, 7) in order to conceal the full extent of his funds in his inmate account to avoid paying the larger partial filing fee required by 28 U.S.C. § 1915(b)(1).3 and when he submitted his first printout, dated May 24, 2010, that contained financial history for only two months, April and May (Doc. 2 at 5), and did not contain financial information for the months of June and July ($150.00 and $345.00, respectively) that preceded the filing of the Complaint on July 26, [*22] 2010 (Doc. 18-1 at 3), and Plaintiff's actions have been persistent, willful, defiant, and contemptuous and caused the needless expenditure of valuable judicial resources in his attempt to circumvent paying the required partial filing fee. As a consequence of his false statements to the Court he has opened himself "to a range of possible sanctions including, but not necessarily limited to, monetary sanctions, revocation of his status as a pauper, a ruling that the Defendants would be allowed to tell any eventual trier of fact of Plaintiff's false statements, dismissal of his case, and even a direction to the United States Attorney's Office to investigate whether Plaintiff should be indicted for perjury." Comoton v. Watkins. No. 1:10CV213, 2011 U.S. Dist. LEXIS 14676, 2011 WL 573577. at *3 (M.D.N.C. Feb. 14, 2011) (unpublished).4 In considering the sanctions to impose for Plaintiff's conduct in this action, the Court bears in mind that Plaintiff also engaged in deceptive conduct in regard to his in forma pauperis request in Lee v. Mills, supra. which indicates to the Court that Plaintiff is not opposed to engaging in similar conduct again even after he has been sanctioned. By Plaintiff's conduct in this action that is similarly directed to his request for in forma pauperis status, it is apparent that Plaintiff's disingenuous conduct is becoming a pattern warranting sanctions that will punish his present conduct and serve as a deterrent to other inmates and to his continuation of this conduct. Accordingly, after carefully considering the sanctions available to the Court, and [*24] finding that lesser sanctions will not suffice, this action is due to be dismissed pursuant to 28 U.S.C. § 1915(e)(2)(A) and Rules 11 (b) and 41 (b) because Plaintiff's allegation of poverty is untrue. This dismissal should be with prejudice because Plaintiff's conduct has been persistent, willful, defiant, and contemptuous. And the money received by the Court for the partial filing fee, $28.00, shall be retained by the Court. Even though monetary sanctions typically are ineffective in regard to an indigent litigant, 28 U.S.C. § 1915(e)(2)(A) authorizes the retention, and if this action would have proceeded, Plaintiff would be responsible for paying the remainder of the $350.00 filing fee for merely having filed this action, and it appears that Plaintiff has more than sufficient funds as compared to the typical prisoner. See 28 U.S.C. § 1915(e)(2)(A) ("Notwithstanding any filing fee, or any portion thereof, that may have been paid the court shall dismiss the case at any time if the court determines that . . . the allegation of poverty is untrue").

Furthermore, the fact that Plaintiff made false statements to the Court causes the Court to readily conclude that this action is malicious. See [*25] Freeman v. Voorheis. No. 1:07-cv-041, 2011 U.S. Dist. LEXIS 21345, 2011 WL 826802. at *3 (S.D. Ohio Feb. 7. 2011) (unpublished) (finding that the "[p]laintiff's false statements in his applications to proceed in forma pauperis provide an additional basis for dismissal of this litigation as `malicious' under 28 U.S.C. § 1915(e)(2)(B)(i)"); see also Norton v. Thomas, No. 96 C 0367, 1996 U.S. Dist. LEXIS 1608, 1996 WL 68013, at *2 (N.D. III. Feb. 14, 1996) (unpublished)(the court opined, in dismissing the inmate's action as malicious for his denial of prior actions and attempt to re-litigate prior claims, that "[a]n indigent who boldly lies to a judge to gain entry to the courts cannot expect to reap the advantages of cost-free filing no matter what the merits of his suit"); Horsey v. Asher. 741 F.2d 209, 212 (8th Cir. 1984) (a complaint is malicious if the plaintiff knowing the allegations are false but makes them with the intent to deceive the court). As a malicious action, this action qualifies as a strike under 28 U.S.C. § 1915(g).5 See Rivera v. Allin, 144 F.3d 719, 731 (11th Cir. 1998) (affirming the district court's counting as a strike an action where plaintiff "had lied under penalty of perjury about the existence of a prior lawsuit [*26]. . . . {and finding that [a]lthough the district court may not have uttered the words `frivolous' or `malicious,' dismissal for abuse of the judicial process is precisely the type of strike that Congress envisioned when drafting section 1915(g)"). abrogated on other grounds by Jones v. Bock. 549 U.S. 199, 127 S.Ct. 910, 166 L.Ed.2d 798 (2007): Wilson-Williams v. Freeman, No. 2:07-CV-480-MEF (WO). 2010 US. Dist. LEXIS 15621, 2010 WL 653870 at *3 (M.D. Ala. Feb. 22, 2010) (unpublished) (under 28 U.S.C. § 1915(e)(2)(B)(i). an inmate who has been allowed to proceed in forma pauperis shall have his case dismissed at any time if the court determines that the action is frivolous or malicious).

III. Conclusion.

"If the court cannot rely on the statements or responses made by the parties, the quality of justice is threatened. The court will not tolerate false responses or statements in any pleading or motion filed before it." Stringer v. Doc. No. 5:11cv1/RS/EMT. 2011 U.S. Dist. LEXIS 77639, 2011 WL 2838128 at *6 (N.D. Fla. June 16. 2011) (unpublished). [*27] Therefore, in order to discourage dishonesty and to sanction Plaintiff's deceitful conduct that abused the in forma pauperis privilege, it is recommended, based upon the foregoing reasons, that this action be dismissed with prejudice pursuant to 28 U.S.C. § 1915(e)(2)(A) and Rule 11(b) and Rule 41(b) of the Federal Rules of Civil Procedure, that the Court retain the partial filing fee of $28.00, and that the dismissal of this action count as a strike for the purpose of 28 U.S.C. § 1915(g) because it is malicious.

MAGISTRATE JUDGE'S EXPLANATION OF PROCEDURAL RIGHTS AND RESPONSIBILITIES FOLLOWING RECOMMENDATION AND FINDINGS CONCERNING NEED FOR TRANSCRIPT

1. Objection. Any party who objects to this recommendation or anything in it must, within fourteen (14) days of the date of service of this document, file specific written objections with the clerk of court. Failure to do so will bar a de novo determination by the district judge of anything in the recommendation and will bar an attack, on appeal, of the factual findings of the magistrate judge. See 28 U.S.C. § 636(b)(1)(C): Lewis v. Smith. 855 F.2d 736, 738 (11th Cir. 1988): Nettles v. Wainwright. 677 F.2d 404 (5th Cir. Unit B. 1982)(en [*28] banc). The procedure for challenging the findings and recommendations of the magistrate judge is set out in more detail in SD ALA LR 72.4 (June 1, 1997), which provides that:

A magistrate judge's recommendation cannot be appealed to a Court of Appeals; only the district judge's order or judgment can be appealed.

2. Transcript (applicable where proceedings tape recorded). Pursuant to 28 U.S.C. § 1915 and Fed.R.Civ.P. 72(b), the magistrate judge finds that the tapes and original records in this action are adequate for purposes of review. Any party planning to object to this recommendation, but unable to pay the fee for a transcript, is advised that a judicial determination that transcription is necessary is required before the United States will pay the cost of the transcript.

DONE this 19th day of August, 2011.

/s/ Bert W. Milling, Jr.

UNITED STATES MAGISTRATE JUDGE

Reporter

2011 U.S. Dist. LEXIS 145720; 2011 WL 6338851

NATHAN I AL C. BLACKER, Plaintiff, v. LORA SATTERTHWAITE, Defendant.

Subsequent History: Adopted by, Objection overruled by, Summary judgment granted by, Summary judgment denied by, Dismissed by Blacker v. Satterthwaite, 2011 U.S. Dist. LEXIS 145781 (S.D. Ohio, Dec. 19, 2011)

Prior History: Blacker v. Satterthwaite, 2010 U.S. Dist. LEXIS 78900 (S.D. Ohio. Aug. 5, 2010)

Counsel: [*1] Nathanial C. Blacker, Plaintiff, Pro se, Lucasville, OH.

For Lora Satterthwaite, Unit Manager, In Individual and Official Capacity, Defendant: Ryan G. Dolan, LEAD ATTORNEY, Attorney General of Ohio, Columbus, OH.

Judges: Stephanie K. Bowman, United States Magistrate Judge. Barrett, J.

Opinion by: Stephanie K. Bowman

Opinion

REPORT AND RECOMMENDATION

Pursuant to local practice, this pro se prisoner litigation has been referred to the undersigned magistrate judge for review and a Report and Recommendation concerning pending motions. Both parties have moved for summary judgment {Docs. 54, 64). In addition, Plaintiff has filed two discovery related motions (Docs. 61, 62).

Having completed my review of the record, I conclude that Defendant's motion for summary judgment should be granted, and that Plaintiff's motion should be denied. Plaintiff's non-dispositive discovery motions will be denied as moot by separate order. In addition, based upon Plaintiff's prior litigation, any attempt by Plaintiff to file an in forma pauperis appeal of the dismissal of this case would be barred by 28 U.S.C. § 1915(g).

I. Procedural and Factual Background

Plaintiff Nathanial Blacker is currently an inmate at the Southern Ohio Correctional Facility, [*2] but was previously confined at the Warren Correctional Institution (WCI) in Lebanon, Ohio. On December 19, 2008, Plaintiff initiated this lawsuit by filing a motion to proceed in forma pauperis and attaching a tendered complaint against four WCI employees. On January 9, 2009, three of the originally named defendants were dismissed on grounds that Plaintiff's complaint failed to state a claim against them. Plaintiff's claims against a fourth official, WCI Unit Manager Lora Satterthwaite (hereinafter "Defendant"), were permitted to proceed. (Doc. 4). On July 16, 2010, Plaintiff filed an amended complaint, to which he attached supporting documentation. (Doc. 32).

The facts underlying Plaintiff's complaint began with his written request to Defendant on February 20, 2007 for a "racial separation" from his three cellmates, based on the assertion that he has "racial tattoos" and that "celling me outside my race puts my life in danger." (See Doc. 32-1). Defendant Satterthwaite responded by stating "you need to provide far more information than the above. Please give all of the reasons in detail, not just having tattoos before you'll be considered"). {Id.; see also Doc. 64-1 at 2-4). Plaintiff [*3] provided no specific additional information to Defendant in response to her denial of his request. (Doc. 64-1 at 2, Satterthwaite Affidavit at ¶ 7). Plaintiff also did not file any requests to be placed into protective custody either in February 2007 or at any other time while incarcerated at WCI.

Eight months later, on October 23 and 24, 2007, Plaintiff notified Defendant, by verbally informing both WCI Sgt. Harold Dunn and Defendant that "serious racial tensions" existed between Plaintiff and his cellmates, and that if a "cellmove" was not effected, a "serious altercation was likely to occur." (Doc. 32 at 5-6; Doc. 54 at 11-12, Blacker Affidavit). On October 24, 2007 Plaintiff allegedly repeated his verbal request for a cell move, but again Defendant refused the request. (Id.). Plaintiff alleges that each time he verbally requested a cell move from shift "regulars," he was advised that he needed to contact Defendant. (Id.). Plaintiff alleges that as a result of Defendant's refusal to move him to a different cell, an altercation occurred in which Plaintiff sustained physical and mental pain, including "multiple abrasions to the head and neck, lacerations . . . below and above the right [*4] eye [and a] small cut to right pinky finger," all of which have resulted in "scars and permanent disfigurement." (Doc. 32 at 7).

Neither the fact of the altercation nor Plaintiff's resulting injuries are disputed by Defendant.1 However, in her motion for summary judgment, Defendant offers evidence that the fight occurred when Plaintiff "unilaterally attacked fellow inmate Ryan Waller with a deadly weapon, and stabbed Inmate Waller in the chest with a 7 inch shank." (Doc. 64 at 2). The incident occurred not in the inmates' cell, but in a common area called the "Dayroom." Plaintiff was subsequently convicted by WCI's Rules Infractions Board ("RIB") for causing physical harm to another with a weapon.2 In addition to his RIB conviction in connection with the assault, Plaintiff was indicted and convicted by a jury in the Warren County Court of Common Pleas on one count of felonious assault and one count of possession of a deadly weapon while under detention. See State v. Blacker, 2009 WL 3350404, 2009 Ohio 5519 (Ohio Add. 12 Dist. Oct. 19. 2009)(remandinq for new trial) and State v. Blacker. 2011 WL 3443562. 2011 Ohio 3916 (Ohio App. 12 Dist. Aug. 8, 2011) (conviction affirmed after retrial). [*5] Plaintiff was sentenced to a term of 10 years, to run consecutive to his original sentence for aggravated robbery. (Doc. 64-3)

In November, 2007, Plaintiff filed an informal complaint complaining about Defendant's refusal to grant him a cell move. Plaintiff alleges that he subsequently filed a formal grievance and appealed the denial of that grievance concerning the alleged misconduct by Defendant. Plaintiff has attached a copy of a written grievance form as an exhibit [*6] in opposition to Defendant's motion for summary judgment, and in support of his own motion. (Doc. 67 at 17; Doc. 68 at 17). In his grievance, Plaintiff complains that:

(See id., emphasis added). The institutional response to the grievance states (erroneously) that Defendant Satterthwaite denied that Plaintiff had made any request foraracial separation prior to the assault. (Id.). However, the institutional response additionally reflects that the Warden granted relief on the grievance, insofar as he granted Plaintiff's request for a cell transfer after the assault.

As an attachment to his motion for summary judgment, Plaintiff has filed an affidavit in which he reiterates that between the denial of his initial written request for a racial separation in February 2007 and October 24, 2007, he "made several verbal requests" to Defendant for a "racial separation." (Doc. 54 at 11). Plaintiff's motion also includes as an exhibit affidavits [*7] from two fellow inmates, both of whom attest that Plaintiff sent a written "kite" to Defendant in February 2007 requesting a "racial separation" and that he made subsequent verbal requests for the same relief. (Doc. 54 at 14-16).

II. Analysis

Defendant's motion for summary judgment seeks judgment in her favor based upon four distinct grounds: (1) the foreclosure of relief because Plaintiff's claim amounts to an attack on his conviction; (2) the failure of Plaintiff to prove either the objective or subjective components of an Eighth Amendment violation; (3) the failure of Plaintiff to prove causation between the alleged unconstitutional conduct and his injuries; and (4) the inability of Plaintiff to overcome the defense of qualified immunity. Defendant's first argument entitles Defendant, at most, to partial judgment. However, the latter three grounds asserted entitle the Defendant to judgment as a matter of law on all claims; therefore, Defendant's motion should be granted in full. Plaintiff's motion for summary judgment advocates for judgment in his favor based upon case law from other jurisdictions, and the undisputed facts that: (1) Plaintiff requested a racial segregation and that [*8] he not be celled with "non-Cuacasoid" [sic] inmates; (2) Defendant denied that request; and (3) Plaintiff was injured as a result of a fight between himself and a non-Caucasian cellmate. As is explained below, the case law cited by Plaintiff is distinguishable, and the undisputed facts alleged by Plaintiff do not lead to judgment in his favor; therefore, Plaintiff's motion should be denied.

A. Arguments Presented in Defendant's Motion

1. Collateral Attack on Conviction

Defendant first argues that granting Plaintiff his requested relief would undermine the validity of his RIB conviction and his criminal conviction, in violation of the principles of Heck v. Humphrey, 512 U.S. 477, 114 S, Ct. 2364, 129 L. Ed. 2d 383 (1994) (Plaintiff's claim for damages is not cognizable under 42 U.S.C. § 1983 if a judgment in his favor would "necessarily imply" the invalidity of his conviction or sentence, unless he can demonstrate that the sentence or conviction has previously been invalidated).

Although examination of Plaintiff's complaint finds no plea for relief relating to his state criminal conviction, a small portion of the complaint could be construed as seeking to overturn Plaintiff's RIB conviction. (See Doc. 32 at 8, seeking "[r]emoval [*9] of any and all violent indicator status, including but not limited to any R.I.B. incident reports [and] convictions"). However, Plaintiff arguably abandons any collateral attack in response to Defendant's motion, when he explains that he does not seek to overturn his conviction, but instead only challenges the Defendant's deliberate indifference to his safety. Moreover, the Supreme Court has held that Heck is not automatically implicated by a suit that impacts a conviction in a prison disciplinary proceeding, absent evidence of the impact on the length of a prisoner's sentence. See Muhammad v. Close, 540 U.S. 749, 124 S.Ct. 1303, 158 L. Ed. 2d 32 (2004) (holding that Heck does not apply categorically to prison disciplinary proceedings).3 Defendant does not argue in this proceeding that Plaintiff's RIB conviction impacted the duration of his confinement. But see Bell v. Wilkinson, 145 Fed. Addx. 169, 170 (6th Cir. 2005) (distinguishing Muhammed based upon conclusion that prisoner's RIB convictions impacted duration of his confinement under Ohio law).

In any event, the bulk of Plaintiff's complaint does not amount to a collateral attack on his conviction. It is beyond dispute that a convicted criminal can sue under 42 U.S.C. $7983 for excessive force or for deliberate indifference to his serious medical needs without undermining his otherwise lawful conviction. Likewise, Plaintiff may pursue relief on a claim of deliberate indifference to his safety without disturbing his underlying convictions for offenses he committed after allegedly having been placed in unreasonably dangerous prison conditions.

2. Objective and Subjective Elements of Failure to Protect Claim

In Farmer v. Brennan, 511 U.S. 825, 833, 114 S.Ct. 1970, 128 L. Ed. 2d 811 (1994). the Supreme Court held that "prison officials have a duty to protect prisoners from violence at the hands of other prisoners" under the Eighth Amendment. Thus, a prisoner can show a violation of the Eighth Amendment if he proves both an objective and subjective component of a "failure to protect" claim. First, under the objective component of the claim, the plaintiff must show that he was "incarcerated under conditions posing a substantial risk of serious harm" id., 511 U.S. at 834. [*11] Second, under the subjective component, the court examines the defendant's state of mind to determine whether he acted with "deliberate indifference" equivalent to an intent to punish inmate health or safety. Id.; see also Molten v. City of Cleveland. 839 F.2d 240, 243 (6th Cir. 1988). To establish the subjective component, a plaintiff must show that the defendants had knowledge of and disregarded an excessive risk to his safety. Id. at 837. On the facts presented, Defendant persuasively argues that Plaintiff can prove neither the objective nor the subjective component of a failure to protect claim.

a. Objective Element — Substantial Risk?

As proof of the objective component of his claim, Plaintiff argues that he was subjected to a "gladiator like scenario" which should have prompted Defendant to "abate the situation" through a cell change. (Doc. 68 at 2). Plaintiff repeatedly argues that he was forced "to participate in the gladiator like scenario, created by the Defendant" by virtue of Defendant's decision to house him with inmates of a different race. (Id.).

Contrary to Plaintiff's apparent belief, the mere fact that inmates of different races are housed together does not constitute [*12] proof of objectively dangerous conditions that would pose a substantial risk of serious harm. It is incontrovertible that "corrections officials retain broad discretion over the administration of prisons, including housing in general and cell assignments in particular." Quick v. Mann. 170 Fed. Addx. 588, 590 (10th Cir. 2006) (citing Bell v. Wolfish. 441 U.S. 520, 540 n. 23, 99 S.Ct. 1861, 60 L. Ed. 2d 447 (1979)). For obvious reasons, courts have widely rejected any notion that a prisoner has any constitutional right to choose his cellmate. See Murray v. Bledsoe. 650 F.3d 246 (3rd Cir. 201 Piper curiam); Allen v. Purkett. 5 F.3d 1151, 1153 (8th Cir. 1993); Harris v. Greer. 750 F.2d 617, 618 (7th Cir. 1984). This truism holds even if a plaintiff's cellmates are "annoying, offensive, strange, rude," or otherwise undesirable as living companions. Dunbar v. Caruso. 2011 U.S. Dist. LEXIS 87824, 2011 WL 3474004 (ED. Mich., July 12. 2071)(quoting Blue v. Knowlin. 2009 U.S. Dist. LEXIS 77868, 2009 WL 2843315. at *4 (D.S.C. Aug. 31, 2009)). Certainly, prison officials ordinarily cannot be faulted for refusing to segregate prisoners on the basis of race, since such a policy would subject them to potential liability on other constitutional grounds. See Johnson v. California. 543 U.S. 499, 509, 125 S.Ct. 1141, 160 L Ed. 2d 949 (2005) (mandating [*13] strict scrutiny review under Equal Protection Clause for racial segregation in prison).

Plaintiff points to a Ninth Circuit case, Robinson v. Prunty, 249 F.3d 862 (9th Cir. 2001). as supporting both the objective and subjective components of his claim in this case. In that case, an appellate court affirmed the denial of qualified immunity to defendants based partly upon a claim by an African-American prisoner that a prison policy of maintaining racially integrated prison yards, despite knowledge of race-based white supremacy gangs, violated the plaintiff's rights. However, in Prunty the plaintiff had specifically alleged additional critical facts that the conditions under which he was incarcerated objectively posed a substantial risk of serious harm. For example, he alleged that racial attacks were rampant, and that correctional officers watched a racially motivated attack on him by a Mexican-American inmate for five minutes without attempting to stop it. Soon thereafter, the plaintiff alleged that he was attacked a second time by another Mexican-American inmate, after guards made several jokes about the likelihood of an imminent fight moments before deliberately releasing the Mexican [*14] inmate into the yard with him. Based on those facts, the Ninth Circuit concluded that plaintiff's evidence "paints a gladiator-like scenario, in which prison guards are aware that placing inmates of different races in the yard at the same time presents a serious risk of violent outbreaks." Id. at 867.

By contrast, even courts in the Ninth Circuit have granted summary judgment in cases like this one, where the plaintiff has failed to submit any evidence of a "serious risk" of imminent harm, or that defendants "predicted or encouraged violent altercations among inmates." See Estate of Torres v. Terhune, 2002 U.S. Dist. LEXIS 1130, 2002 WL 32107989 at *9 (E.D. Cal. Jan. 9, 2002). Unlike Prunty, Plaintiff's complaint does not include allegations of widespread racial attacks by gangs that created a "gladiator like atmosphere" without fear of discipline by prison officials, nor has Plaintiff offered evidence of prior attacks on Plaintiff like those that occurred in Prunty. Even assuming that the Sixth Circuit would fully adopt the Ninth Circuit's analysis,4 Prunty is clearly distinguishable from the case presented.

Again, Plaintiff must show that he was incarcerated under conditions presenting a substantial risk of harm. Here, however, Plaintiff has alleged only that his own personal prejudices against non-Caucasian inmates placed him at risk of confrontation. Although Plaintiff notified Defendant of his aversion to being celled with non-Caucasian inmates and of his generalized concern for his health and safety based upon his "racial tattoos," Plaintiff never alerted the Defendant to any specific threat to his health or safety. In addition, Plaintiff never sought protective custody or administrative segregation at any time between February 20, 2007 and October 24, 2007. See, e.g. Mosguera v. Delgado, 2010 U.S. Dist. LEXIS 50052, 2010 WL 2010973 (N.D. Ohio. April 30. 2010). adopted 2010 U.S. Dist. LEXIS 50058, 2010 WL 2010969 (N.D. Ohio. May 20, 201 (inmate who alleged that he repeatedly told defendants that he feared for his health and safety due to "serious threats and conflict" with gang members did not show incarceration under conditions posing a substantial risk of serious harm; inmate [*16] identified only general conflict and failed to ask prison personnel for protection after notifying them of having received a threat).

In order to prove the objective element of his claim, Plaintiff must do more than allege a generalized concern for his safety and welfare. The facts alleged by Plaintiff fall short of the requisite standard because his requests for a "racial separation" expressed no more than a generalized concern that he would be drawn into a confrontation with non-Caucasian cellmates based upon his own prejudice. Not only does Plaintiff fail to allege any pattern of altercations, but there is no evidence that any altercation at all occurred for more than eight months after his initial complaint. See Curtician v. Kessler, 2009 U.S. Dist, LEXIS 69239, 2009 WL 2448106 at *8 (W.D. Pa. Aug. 7, 2009) (Plaintiff's claim that Defendants failed to protect him by "forcing" him to share a cell with various black Muslim inmates failed to state a claim in the absence of evidence that risk of serious harm existed "other than the perceived danger conjured up by Plaintiff's blatant racism."); see also Lewis v. McClennan. 7 Fed. Appx. 373, 375 (6th Cir. 2001) (affirming dismissal of claim by African-American prisoner [*17] that placing him in large population of white inmates demonstrated deliberate indifference, because at most plaintiff showed no more than a "hypothetical risk of danger to his safety prior to the attack."); Vinvard v. Evans. 2008 U.S. Dist. LEXIS 25343, 2008 WL 907381 at *3 (E.D. Mich. March 31. 2008) (inmate alleging failure to protect had no right to be housed with members of own race); Lindell v. Daley, 2003 WL 23277280 at *10 (W.D. Wis., Nov. 21, 2003)(Plaintiff had no constitutional right to share a cell with a white cell mate, notwithstanding knowledge by prison officials that Plaintiff did not get along with non-white inmates).

b. Subjective Element of Claim

For similar reasons, Plaintiff's allegations fall short of showing the subjective element of his claim. To prove the subjective element, Plaintiff must show that Defendant was both aware of the substantial risk, and actually disregarded it. For example in Prunty, the court specifically noted that the defendants'"awareness of and indifference to this risk is demonstrated by the alleged frequency with which such outbreaks occur, by the alleged jokes made by the guards to [the plaintiff] before they released" his attacker into the yard with him, and "by [*18] the alleged fact that the guards failed to intervene while [plaintiff] was attacked by another inmate." Id., 249 F.3d at 867.

In stark contrast to the clear evidence that the defendants were keenly aware of specific danger to the plaintiff and deliberately disregarded it in Prunty. in this case Plaintiff points only to his February 2007 written request for a "racial separation" and occasional follow-up oral requests. However, Plaintiff never provided additional information about any danger, as Defendant requested in February, never sought protective custody or administrative segregation, and never conveyed any specific threat. Moreover, no altercations were ever reported between Plaintiff and his cellmates over many months. Instead, the assault that occurred on October 24, 2007 appears to have been a single, isolated event which Plaintiff initiated.

The written response to Plaintiff's February 2007 request proves that Defendant did not wholly ignore Plaintiff's request for a cell change based upon racial considerations, but instead asked Plaintiff for additional information. "[P]rison officials who actually knew of a substantial risk to inmate health or safety may be found free from [*19] liability if they responded reasonably to the risk, even if the harm ultimately was not averted." Farmer, 511 U.S. at 844. Although Defendant argues that she was not aware of any "substantial" risk, she also argues persuasively that her response to Plaintiff's request was reasonable given the minimal information provided by Plaintiff.

Given the data known to Defendant as a whole, it was reasonable for Defendant to conclude that a "racial separation" was not necessary. See Scott v. Odmark. 107 F.3d 871, 1997 WL 76213 (6th Cir. 1997)(table. text available in Westlaw, affirming dismissal of failure to protect claim where, despite knowledge that cellmates fought when first placed together, it was reasonable for Defendant to assume that inmates could co-habitate when they were able to sustain civility toward each other for a period of five days); see also Froiseth v. County of La Crosse, 2006 U.S. Dist LEXIS 26075, 2006 WL 1236714. at *9 (W.D. Wis. May 1, 2006)("A vague expression of fear unaccompanied by any specifics does not give jail officials the knowledge necessary to support a deliberate indifference claim."); O'Connell v. Williams, 241 Fed. Addx. 55, 58 (3rd Cir. 2007)(an inmate cannot establish subjective [*20] awareness of serious risk simply by asserting that staff were informed that inmate was not getting along with other inmates).

3. Failure of Proof of Causation

To succeed under § 1983, a plaintiff must show: "1) the deprivation of a right secured by the Constitution or laws of the United States and; 2) the deprivation was caused by a person acting under color of state law." Simscu v. Emmet County of Dept. Of Soc. Servs., 942 F.2d 372, 374 (6th Cir. 1991) Hemphasis added). Defendant argues that in this case, Plaintiff cannot possibly prove that she "caused" any harm to Plaintiff, because of the passage of time, the fact that the fight occurred in a common area rather than Plaintiff's cell, and because Plaintiff himself was the instigator of the October 24, 2007 fight with his cellmate.

a. The Passage of Time as a Break in Causation

First, Defendant argues that Plaintiff cannot show causation because Plaintiff did not provide her with the information Defendant requested in response to Plaintiff's initial request for a "racial separation" from his cellmates in February 2007. After Defendant denied Plaintiff's request based upon the inadequate information he first provided, no altercations or [*21] incidents occurred for a period of more than eight months, until the incident on October 24, 2007. Other courts have held that the passage of time can indeed eliminate proof of causation in a failure to protect claim. See, e.g., Scott v. Odmark, 107 F.3d 871 (6th Cir. 1997)(reasonable for Defendant to assume that inmates could co-habitate when they were able to sustain civility toward each other for a period of five days after initial altercation); Lindell v. Daley, 2003 WL 23277280 at *10-11 (W.D. Wis., Nov. 21, 2003)(passage of many months since last racial altercation made reasonable officials' assumption that plaintiff did not face any imminent risk of harm).

b. Location of Assault

Defendant also argues that because the incident did not occur in Plaintiff's cell, but instead in a common area where all inmates housed in the dorm may congregate, Plaintiff cannot show that Defendant's denial of the request for a cell change bore any causal relationship to the fight. However, in Farmer, the Supreme Court explained that a prison official may not escape liability "by showing that, while he was aware of an obvious, substantial risk to inmate safety, he did not know that the complainant [*22] was especially likely to be assaulted by the specific prisoner who eventually committed the assault." Id. at 843. By analogy, when an inmate expresses concern for his safety due to animosity between himself and a cellmate, a prison official should not be permitted to escape liability for a violent attack merely because the cellmate waited until an opportune moment outside the confines of the cell to attack Accord Chasteen v. Jackson, Case No. 1:09-cv-413. 2011 U.S. Dist. LEXIS 45789, 2011 WL 1598751 (S.D, Ohio. April 28, 2011) (denying dismissal by Defendant Satterthwaite on grounds that plaintiff complained of fear of cellmates, but was not attacked within confines of cell).

c. Plaintiff as the Sole Proximate Cause

Last but not least, Defendant argues that Plaintiff's own actions were the cause of his injuries, citing RIB and state criminal records that show that Plaintiff himself initiated the altercation by stabbing his fellow inmate. As Defendant puts it, permitting Plaintiff's suit to proceed "opens the door for problem inmates such as Plaintiff to take advantage of the Courts by blaming others for their own violent behavior." (Doc. 69 at 1).

Defendant's argument has some initial appeal. Plaintiff's claim amounts [*23] to a contention that a prison official can be held liable for failure to protect, if he or she fails to heed a would-be-plaintiff's threat to start a fight. Another district court recently suggested that such a claim is not cognizable in the Sixth Circuit. In Molina v. Smearsal, 2011 U.S. Dist. LEXIS 4544, 2011 WL 127158 (N.D. Ohio. Jan. 14, 2011). an inmate was injured when a guard broke the plaintiff's leg while breaking up a fight that the plaintiff had initiated with his cellmate. The plaintiff sued for "failure to protect" on grounds that he had previously requested a cell transfer that the defendants had refused. The district court first determined that plaintiff's claim should be dismissed based on plaintiff's failure to administratively exhaust as required under the PLRA. 2011 U.S. Dist. LEXIS 4544. [WLI at *3. However, the court went on to explain that even if Molina had exhausted, the claim would fail on the merits because "[t]he fact that Molina instigated the altercation is fatal to his claim." Id. The court rejected any claim based upon an allegation that the plaintiff "was forced [to] assault [his cellmate] as a preemptive measure." Id. "While prisoners do have a constitutional right to be protected from the violence of other [*24] prisoners when there is adequate notice of an impending assault, that assumes that the complainant is the victim, rather than the proximate cause, of the assault." Id. Because the court concluded that the claim was subject to dismissal for failure to exhaust, the Molina court's subsequent conclusion — that a plaintiff who initiates an altercation cannot bring a failure to protect claim is dictum. Moreover, as the Molina court acknowledged, its analysis that the claim would be barred in the Sixth Circuit is contrary to the Seventh Circuit's analysis in Santiago v. Walls. 599 F.3d 749. 759 (7th Cir. 2010)(holding that whether the plaintiff threw the first punch is irrelevant to failure to protect claim).

In this case, Plaintiff complied with the procedural requirements of the PLRA by administratively exhausting his claim. Thus, this case squarely presents the question of whether the Sixth Circuit would recognize a "failure to protect" claim when the person from whom the plaintiff seeks protection is himself. Simply framing the question in such a way yields a quick affirmative answer, at least in some circumstances. For example, prison officials clearly have a duty to protect a suicidal [*25] inmate who threatens to harm himself. See, e.g., Comstock v. McCrary, 273 F.3d 693 (6th Cir. 200(deliberate indifference to substantial risk of suicide). One can at least conceive of a case in which a prison official might also have a duty to protect a mentally ill homicidal inmate (as well as his or her intended victim), by taking steps to prevent the would-be murderer from carrying out a well-defined plan of attack. The same conceptual analysis presumably might apply even when the would-be murderer does not suffer from any recognizable mental illness.

The difference in this case is that Plaintiff was apparently irritated with his cellmates, but there is no evidence that he had any well-defined or specific plan to act violently against them. Indeed, Plaintiff had exhibited an eight month history of non-violent confrontation over perceived differences with his cellmates, despite his alleged intolerance of racial differences as a declared white supremacist.

In the absence of Sixth Circuit case law, I conclude that no blanket prohibition on a "failure to protect" claim exists in cases where a plaintiff claims injuries resulting from a fight that he instigated with another inmate. Instead, [*26] the plaintiff's own conduct is one of several factors to be reviewed in determining causation. In this case, analysis of all relevant factors leads to judgment for the Defendant. Plaintiff was housed with non-Caucasian cellmates for a relatively long period of months without any incidents of violence, notwithstanding his February 2007 written complaint seeking a cell change, and subsequent sporadic but non-specific verbal complaints between February 2007 and October 24, 2007. Given Plaintiff's failure to provide the requested information to Defendant in February 2007 concerning any specific threat, it cannot be said that Defendant's denial of that request was a proximate cause of Plaintiff's altercation more than eight months later. Plaintiff's verbal reiteration of his request, including a day or two prior to the incident, also fail to demonstrate causation on the facts presented. The Defendant's denial of Plaintiff's verbal request shortly before the assault does not lead to a finding of causation, due to Plaintiff's history of non-violence toward his cellmates and non-specific threats. Thus, Defendant's failure to give in to what was reasonably perceived to be no more than Plaintiff's [*27] racial prejudice against his cellmates cannot be viewed as a "cause" of Plaintiff's injuries in this case.

4. Qualified Immunity

As her last argument in favor of judgment in her favor, Defendant asserts that she is entitled to qualified immunity based upon her discretionary decision to request additional information prior to acting upon Plaintiff's request for a racial separation. The Court agrees.

First, as discussed infra, there is no clearly established constitutional right for an inmate to be protected from his own vaguely defined threat to start a fight if not transferred to another cell. Although this Court has concluded that a failure to protect claim can survive evidence that the plaintiff threw the first punch, another district court in this circuit has reached the opposite conclusion. In light of the lack of published case law recognizing a failure to protect claim brought by an inmate who instigates violence, a reasonable correctional officer in Defendant's position would not have known that failing to accede to Plaintiff's demand that he be housed only with Caucasian inmates, and/or Plaintiff's vague threat that a failure to racially segregate him would result in harm, was [*28] a violation of any of Plaintiff's constitutional rights. In addition, Defendant's initial response in February was objectively reasonable, and Plaintiff does not dispute that he never followed up with additional information to support his request for a transfer. (See Docs. 67, 68 at 5, "No additional information or details were ever submitted to the Defendant, that is correct."). Plaintiff's allegations that he verbally reiterated his request for a racial separation over an 8-month period during which no incidents occurred does not give rise to liability, given that he never provided any additional information to support the request.

B. Arguments Presented in Plaintiff's Motion

Plaintiff seeks the entry of judgment in his favor based upon the undisputed facts that: (1) Plaintiff requested a racial segregation and that he not be celled with "non-Cuacasoid" [sic] inmates; (2) Defendant denied that request; and (3) Plaintiff was injured as a result of a fight between himself and a non-Caucasian cellmate. (Doc. 54). As the Court has already explained, the case law cited by Plaintiff is distinguishable and the undisputed facts alleged by Plaintiff do not lead to judgment in his favor. Accordingly, [*29] the Court will not further repeat its analysis in recommending the denial of Plaintiff's motion.

C. The "Three Strike" Provision of the PLRA

To date, Plaintiff Nathanial Blacker has filed three civil lawsuits in this Court: (1) Blacker v. Moore, Case No. 1:09-cv-337-HJW; (2) Blacker v. Des Maraias, Case No. 1.09-cv-346-SSB; and (3) the instant case, Case No. 1:08-cv-874-MRB.5 In the first case, Blacker v. Moore, all of Plaintiff's claims were dismissed sua sponte by the Court upon initial screening under both 28 U.S.C. 881915(e)(2)(B) and 1915A(b). for failure to state a claim upon which relief may be granted. (See Doc. 4, Order filed 05/26/09). In the second case, Blacker v. Des Maraias, the complaint against Defendant Des Maraias was also dismissed sua sponte for failure to state a claim, although claims against two other defendants were permitted to proceed. (Doc. 4, Order filed 5/21/09). In the case at hand — Plaintiff's third in this Court the Court dismissed sua sponte, for failure to state a claim, all claims against three additionally named defendants (Crawford, Mcintosh and Shoemaker). (Doc. 4, Order filed 1/09/09).

A provision of the Prison Litigation Reform Act, 28 U.S.C. 81915(g). states:

Id.

This "three strike" provision was enacted as one of several amendments in the PLRA to prevent prisoners from repeatedly filing frivolous litigation. The provision is strictly enforced, in that courts have upheld its application even to cases dismissed prior to the enactment of the PLRA. See Wilson v. Yaklich, 148 F.3d 596. 603 (6th Cir. 1998). In addition, the Sixth Circuit has held that when a portion of a complaint is dismissed with prejudice for failure to state a claim, that dismissal qualifies as a strike under 81915(g) even if other claims are not dismissed as frivolous or for failure to state a claim. See Pointer v. Wilkinson. 502 F.3d 369 (6th Cir. 2007)(strike counted for claim dismissed for failure to state a claim, even though other claims in the complaint were dismissed without prejudice for failure to exhaust); but see, e.g., Thompson v. Drug Enforcement Admin. 492 F.3d 428, 377 U.S. App. D.C. 129 (C.A.D.C. 2007)(action containing at least one non-frivolous claim does not count as strike); Turiey v. Gaetz, 625 F.3d 1005 (7th Cir. 2010)(same).

Plaintiff [*32] has had claims dismissed sua sponte, for failure to state a claim, in all three of the cases filed in this Court. Therefore, Plaintiff should be deemed to have "three strikes" against him by this Court for purposes of 28 U.S.C. 81915(g). In any future motion to proceed in forma pauperis whether concerning a new complaint or appeal, Plaintiff should clearly note his full litigation history in any federal court. A failure to do so is likely to result in immediate dismissal, and may invite additional sanctions. See, e.g., Horton v. Thomas, 1996 U.S. Dist. LEXIS 1608, 1996 WL 68013 at *2 (N.D. Ill., Feb. 14, 1996)(Dismissinq suit because "[a]n indigent who boldly lies to a judge to gain entry to the courts cannot expect to reap the advantages of cost-free filing no matter what the merits of his suit."); Walton v. Fairman, 1993 U.S. Dist. LEXIS 4157, 1993 WL 96427at *4 (N.D. HI. April 1, 1993)(dismissing Plaintiff for attempting to deceive the court regarding prior litigation history); Garland v. O'Grady. 1988 U.S. Dist. LEXIS 12370, 1988 WL 118879 at "2-3 (N.D. Ill., Nov. 3, 1988)(by failing to list prior lawsuits, inmate "perjured himself); see also, generally Warren v. Guelker, 29 F.3d 1386, 1390 (9th Cir. 1994)(Rule 11 applies to false statements by prisoner regarding [*33] litigation history); Horsey v. Asher. 741 F.2d 209, 212 (8th Cir. 7984)(complaint is malicious if Plaintiff makes false statements with intent to deceive the court).

III. Conclusion and Recommendations

Accordingly, for the reasons stated herein, IT IS RECOMMENDED THAT:

1. Defendant's motion for summary judgment (Doc. 64) be GRANTED;

2. Plaintiff's motion for summary judgment (Doc. 54) be DENIED;

3. Based upon Plaintiff's prior litigation history, Plaintiff be deemed to have "three strikes" against him for purposes of 28 U.S.C. § 1915(g). and be foreclosed from filing future litigation in forma pauperis while incarcerated or detained in any facility unless he is under imminent danger of serious physical injury.

4. This case be CLOSED and stricken from the active docket.

/s/ Stephanie K. Bowman

Stephanie K. Bowman

United States Magistrate Judge

NOTICE

Pursuant to Fed. R. Civ P. 72(b). any party may serve and file specific, written objections to this Report & Recommendation ("R&R") within FOURTEEN (14) DAYS of the filing date of this R&R. That period may be extended further by the Court on timely motion by either side for an extension of time. All objections shall specify the portion(s) of the R&R [*34] objected to, and shall be accompanied by a memorandum of law in support of the objections. A party shall respond to an opponent's objections within FOURTEEN (14) DAYS after being served with a copy of those objections. Failure to make objections in accordance with this procedure may forfeit rights on appeal. See Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466, 88 L. Ed. 2d 435 (1985): United States v. Walters. 638 F.2d 947 (6th Cir. 1981).

Reporter

2012 U.S. Dist. LEXIS 164998

OKECHUKWU UDUKO, Plaintiff, v. STEPHEN E. COZZENS, et al., Defendants.

Subsequent History: Adopted by, Motion denied by Okechukwu Uduko v. Cozzens, 2012 U.S. Dist. LEXIS 163790 (E.D. Mich., Nov. 16, 2012)

Magistrate's recommendation at Uduko v. Cozzens, 2013 U.S. Dist LEXIS 140802 ( E.D. Mich., July 26, 2013)

Dismissed by, in part Uduko v. Cozzens, 2013 U.S. Dist. LEXIS 141178 (E.D. Mich., Oct. 1, 2013)

Counsel: [*1] Okechukwu Uduko, Plaintiff, Pro se, Milan, Ml.

For Stephen E. Cozzens, Chaplain, Defendant: Catherine Lemery, Darlene M. Haas Awada, U.S. Attorney's Office, Detroit, Ml; Sarah Pring Karpinen, U.S. Department of Justice, United States Attorney's Office, Detroit, Ml.

For Mukhtar Curtis, Supervisory Chaplain, Arturo Aviles, Unit Manager, Brett W. Ellis, Lieutenant, Bryce Brown, Counselor, John Cheatham, Case Manager, Kevin Toney, Captain, Tim Duby, Lieutenant, David Dolber, Lieutenant, Dave Downing, Lieutenant, Katie Murdock, Correctional Officer, Anthony Bozeman, Correctional Officer, R. Gubbins, Correctional Officer, Christopher Zych, Warden, Defendants: Catherine Lemery, U.S. Attorney's Office, Detroit, Ml; Sarah Pring Karpinen, U.S. Department of Justice, United States Attorney's Office, Detroit, Ml.

Judges: Michael Hluchaniuk, United States Magistrate Judge. Victoria A. Roberts, United States District Judge.

Opinion by: Michael Hluchaniuk

Opinion

REPORT AND RECOMMENDATION MOTION TO DISMISS BASED ON "THREE STRIKES" (Dkt. 31)

I. PROCEDURAL HISTORY

Plaintiff, a prisoner in the custody of the Federal Bureau of Prisons, filed this civil rights action on August 29, 2011. (Dkt. 1). Plaintiff applied for, and was granted, permission [*2] to proceed in forma pauperis. (Dkt. 2, 5). Service by the Marshal was also ordered based on plaintiff's IFP status. (Dkt. 6). This matter was referred to the undersigned for all pretrial proceedings by District Judge Victoria A. Roberts. (Dkt. 7).

In December 2011, defendants filed a "Notice of Waiver of Reply and Reservation of Affirmative Defenses" in lieu of filing an answer to the complaint or a motion to dismiss, pursuant to 42 U.S.C. § 1997e(g). (Dkt. 14). Defendants asked the Court to review this action under 28 U.S.C. § 1915. suggesting that plaintiff should not be permitted to proceed in forma pauperis because he has "three strikes." Defendants pointed out that, although the Court has generally granted plaintiff in forma pauperis, it was unclear whether the Court reviewed plaintiff's extensive litigation history. Defendants contended that plaintiff misrepresented his litigation history to the Court in his complaint by stating that he had not filed any other lawsuits in state or federal court relating to his imprisonment. Defendants provided a list of cases that plaintiff previously filed (Dkt. 14-2), but did not provide any analysis of whether and to what extent any of those [*3] cases (as filed in the District Court or any appeal that may have been taken) could properly be deemed "strikes" under the three strikes rule. Given that it is not always crystal clear whether a particular case may be deemed a "strike," the Court asked for the parties' insight on whether any of the cases identified by defendants on their list constitute strikes.

In response to the Court's Order, defendants filed a motion requesting that plaintiff's IFP status be revoked, that plaintiff be enjoined from filing any future civil actions in forma pauperis, unless under imminent danger of serious physical injury, and that plaintiff's complaint be dismissed in accordance with the requirements of the PLRA. (Dkt. 31). Plaintiff contends that his complaint cannot be dismissed under the "three strikes" provision because he has already paid the filing fee in full and because his prior civil cases do not count as strikes given that they did not involve prison conditions.

For the reasons set forth below, the undersigned RECOMMENDS that defendant's motion be DENIED in its entirety.

II. ANALYSIS AND CONCLUSIONS

A. Three Strikes

Defendants contend that, regardless of whether plaintiff has now paid the [*4] filing fee in full, his complaint should still be dismissed under the three strikes provisions of the PLRA. According to defendants, the PLRA does not limit "strikes" to litigation regarding conditions of confinement. The undersigned agrees. See e.g., Woodruff v. Wyoming, 49 Fed.Appx. 199 (10th Cir. 2002) (Section 1915 is not limited to litigation involving prison conditions); U.S. v. Jones, 215 F.3d 467, 469 (4th Cir. 2000) (same); Lefkowitz v. Citi-Equity Group, Inc., 146 F.3d 609, 612 (8th Cir. 1998) (Section 1915 "is not limited to challenges to conditions of confinement."). Notably, the burden is not on plaintiff to establish an absence of three strikes. Thompson v. PEA. 492 F.3d 428, 435, 377 U.S. App. D.C. 129 (D.C. Cir. 2007). Rather, evidence showing the grounds for prior dismissals must be produced either by the defendant challenging the prisoner's IFP status or, when readily available, by the court itself. Id. at 435-436. Once such evidence has been produced, "the ultimate burden of persuasion shifts back to the prisoner to explain why the past dismissals should not count as strikes." Id. at 436.

Defendants point to several cases that they contend should be considered strikes against plaintiff:

Cases 1 and 2 identified above are clearly strikes, given that they were dismissed as frivolous. Cases 3 and 4 are less clear. Defendants contend that the dismissals for lack of subject matter jurisdiction should count as strikes, citing Cohen v. Corrections Corporation of America, 439 Fed. Addx. 489, 492. 2011 WL 4469587 (6th Cir. 2011) ("While in the ordinary case, a dismissal for a lack of jurisdiction [*8] is not a strike, Q a per se rule is not appropriate because a prisoner's invocation of federal jurisdiction in and of itself may be frivolous where there is `no possible ground upon which a reasoned argument can be made to sustain Q jurisdiction.'"). In Case No. 93-3492, plaintiff filed a complaint against the United States of America contesting a forfeiture action involving the US Customs Service. (Dkt. 31-20). After the lawsuit was served, Customs decided to reopen the administrative proceeding. Despite receiving notice of the reopened case, plaintiff did not file a new claim with Customs and made it clear that he wished to have the matter handled in federal court. Customs filed a motion to dismiss based on lack of subject matter jurisdiction, given that the matter was pending administratively. The court ultimately determined that it had no subject matter jurisdiction because of the reopened administrative proceeding and also determined that plaintiff's objections to the forfeiture were without merit. Specifically, the court concluded that (1) plaintiff's argument — that the seized property was unjustly used at his criminal trial to secure a conviction — had no relevance to the [*9] forfeiture proceeding; (2) plaintiff failed to file a claim in the reopened administrative proceedings subjected the currency to forfeiture; (3) the principle that property should be returned once the government no longer has use for it in a criminal trial did not apply because the currency was seized not just for plaintiff's criminal trial, but also pursuant to a separate and distinct civil proceeding, which is entirely independent of any criminal prosecution; and (4) the search and seizure was not unlawful because it occurred at an airport, the functional equivalent of a border, where less than probable cause is required to search baggage or a person. (Dkt. 31-20, Pg ID 664-665). Defendants appear only to argue that the lack of subject matter jurisdiction is what renders this matter "frivolous." While they mention that plaintiff's lawsuit was found "meritless," they do not address whether or how that translates into frivolousness.1 In the view of the undersigned, this lawsuit was not frivolous as defendants contend because the court had subject matter jurisdiction when it was filed. Thus, it would not seem to fall into the exception to the general rule that dismissal for lack of [*10] subject matter jurisdiction is not a strike, cited in Cohen. For this reason, the appeal does not appear to be a strike either.

As to Case 5, defendants seem to be arguing that the motion for reconsideration in this habeas case should be considered a "frivolous motion" or "appeal in operation" and therefore, a strike. Defendants fail to explain or cite any supporting authority suggesting that a motion, regardless of its merit, filed in a § 2255 case can be considered a strike. Kincade v. Sparkman. 117 F.3d 949, 952 (6th Cir. 1997) (Dismissals of petitions for writ habeas corpus are not counted for purposes of the "three strikes" rule.); Jennings v. Natrona County Pet. Cir. Med. Facility. 175 F.3d 775, 780 (10th Cir. 1999) ("Habeas corpus and 28 U.S.C. § 2255proceedings are not civil actions under 28 U.S.C. § 1915. Hence, the dismissal of a habeas corpus or § 2255 petition does not count as a strike for purposes of limiting in forma pauperis status under § 1915(g)."): Walker v. O'Brien. 216 F.3d 626. 634 (7th Cir. 2000) ("[i]f a case is properly filed as an action [*11] under 28 U.S.C. ¶ $2241, 2254. or 2255. it is not a `civil action' to which the PLRA applies."). There is also no suggestion by defendants that plaintiff's ¶ 2255 petition was a civil rights case in disguise. Thus, defendants have not met their burden of establishing that this case is a strike.

Finally, the undersigned is not persuaded that Case 6 should be deemed a strike. While the court granted both parties' motions to dismiss on the grounds that the documents requested under FOIAhad been supplied to plaintiff, it is not clear when those documents were provided — before or after the lawsuit was filed. (Dkt. 31-22). Obviously, the timing that such information was provided to plaintiff is critical to determining whether plaintiff's FOIA claim had any merit at the time it was filed. Thus, the undersigned cannot conclude whether the suit was frivolous or failed to state a claim at the time it was filed.2

Based on the foregoing, plaintiff has only two strikes. The undersigned, therefore, concludes that his in forma pauperis status should not be revoked.

B. Frivoiousness of Complaint

Defendants invite the Court to conduct a review of plaintiff's complaint under 28 U.S.C, § 1915(e)(2)(B)(i) as being frivolous. Defendants argue, in [*15] a conclusory fashion, that plaintiff's complaint is frivolous and fails to satisfy Rule 8(a)(2):

C. Failure to State a Claim/Sovereign Immunity

Defendants also argue that plaintiff's complaint should be dismissed for failure to state a claim because a suit against the United States for money damages cannot proceed without a waiver of sovereign immunity and plaintiff fails to identify what legal claims he seeks to advance, against whom and under which, if any, waiver of sovereign immunity. According to defendants, plaintiff's complaint "exclusively refers to Defendants in their official capacities" so his claims against any individuals are in effect against the sovereign and should be dismissed. (Dkt. 31, Pg ID 611). Defendants are wrong.

In his complaint, plaintiff makes the following allegation regarding the capacity of defendants:

(Dkt. 1-1, Pg ID 79). Defendants are correct insofar as the Bivens3 doctrine does not permit an official capacity suit for money damages against a federal official. Such a suit is essentially a claim directly against the United States, which is entitled to absolute immunity. Beraer v. Pierce, 933 F.2d 393 (6th Cir. 1991); Okoro v. Scibana, 63 Fed.Appx. 182, 184 (6th Cir. 2003). However, Bivens expressly validated the availability of a claim for damages against a federal official in his or her individual capacity, to the extent that such an official is only responsible for his or her own conduct. Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1948-49, 173 L. Ed. 2d 868 (2009). Plaintiff's complaint makes it quite clear that he seeks money damages against defendants in their individual capacity. Defendants have not offered any explanation as to why plaintiff is not permitted to do so.

Plaintiff's [*19] complaint also makes it clear that, to the extent he has sued defendants in their official capacity, he seeks only injunctive relief. With respect to his request for injunctive relief, while such relief is not available through a Bivens action, it is directly available via federal statute granting a limited waiver of sovereign immunity:

Parker v. Hickey, 2011 U.S. Dist. LEXIS 22736, 2011 WL 839663 (ED. Ky. 2011). quoting 5 U.S.C. 5702: see also Simmat v. U.S. Bureau of Prisons, 413 F.3d 1225, 1231 (10th Cir. 2005). Again, defendants have not explained why plaintiff is not entitled to seek injunctive relief against defendants in their official capacity. Thus, the undersigned sees no basis to conclude that plaintiff has failed to state a claim on which relief can be granted or that plaintiff's complaint is otherwise frivolous because [*20] of sovereign immunity.

III. RECOMMENDATION

For the reasons set forth above, the undersigned RECOMMENDS that defendant's motion be DENIED in its entirety.

The parties to this action may object to and seek review of this Report and Recommendation, but are required to file any objections within 14 days of service, as provided for in Federal Rule of Civil Procedure 72(b)(2) and Local Rule 72.1(d). Failure to file specific objections constitutes a waiver of any further right of appeal. Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466, 88 L. Ed. 2d 435 (1985): Howard v. Sec'y of Health and Human Servs., 932 F.2d 505 (6th Cir. 1981). Filing objections that raise some issues but fail to raise others with specificity will not preserve all the objections a party might have to this Report and Recommendation. Willis v. Sec'y of Health and Human Servs., 931 F.2d 390, 401 (6th Cir. 1991): Smith v. Detroit Fed'n of Teachers Local 231, 829 F.2d 1370, 1373 (6th Cir. 1987). Pursuant to Local Rule 72.1(d)(2). any objections must be served on this Magistrate Judge.

Any objections must be labeled as "Objection No. 1," "Objection No. 2," etc. Any objection must recite precisely the provision of this Report and Recommendation to which it pertains. [*21] Not later than 14 days after service of an objection, the opposing party may file a concise response proportionate to the objections in length and complexity. Fed.R.Civ.P. 72(b)(2), Local Rule 72.1(d). The response must specifically address each issue raised in the objections, in the same order, and labeled as "Response to Objection No. 1," "Response to Objection No. 2," etc. If the Court determines that any objections are without merit, it may rule without awaiting the response.

Date: September 21, 2012

/s/ Michael Hluchaniuk

Michael Hluchaniuk

United States Magistrate Judge