United States District Court, N.D. Indiana, South Bend Division
OPINION AND ORDER
P. SIMON CHIEF JUDGE
Scott Cunningham, a pro se prisoner, filed a
complaint and a petition to proceed without paying the filing
fee. (DE 1; DE 2.) Cunningham is a litigious fellow, and he
has pursued most of his litigation in forma
pauperis. Under 28 U.S.C. § 1915(g), an inmate may
not proceed in forma pauperis if he has filed a
complaint or appeal that frivolous, malicious, or did not
state a claim upon which relief could be granted on three or
more prior occasions. This is referred to as the
“three-strikes rule.” Cunningham has accumulated
at least four strikes. See Cunningham v. Maughmer,
No. 3:11-cv-483 (N.D. Ind., Dec. 16, 2011); Cunningham v.
Maughmer, 3:12-cv-002 (N.D. Ind., Jan. 4, 2012);
Cunningham v. Indiana, 3:13-cv-118 (N.D. Ind., Feb.
21, 2013); Cunningham v. Maughmer, 3:13-cv-161 (N.D.
Ind., March 4, 2013). Although there is an exception to the
three-strikes rule for inmates who are in imminent danger of
serious physical injury, Cunningham doesn’t fit the
bill. See Abdul-Wadood v. Nathan, 91 F.3d 1023, 1025
(7th Cir. 1996). He claims that he was illegally extradited
from Florida to Indiana in March 2015, but
“[a]llegations of past harm do not suffice[.].”
See Ciarpaglini v. Saini, 352 F.3d 328, 330 (7th
Cir. 2003) (internal citation omitted). As a result,
Cunningham cannot proceed with this case without paying the
filing fee in full.
knows that he is restricted from proceeding in forma
pauperis because he was told at least twice before
filing this case. See Cunningham v. Logansport
Police Department, No. 3:13-cv-244 (N.D. Ind. Apr.
3, 2013) (DE 2); Cunningham v. Sheriff, No.
3:13-cv-357 (N.D. Ind., May 1, 2013) (DE 2). Nevertheless, he
filed an in forma pauperis petition. (DE
3.) The Seventh Circuit has spoken plainly about what happens
when a litigant seeks leave to proceed in forma
pauperis after being told that he is restricted:
Litigants to whom § 1915(g) applies take heed! An effort
to bamboozle the court by seeking permission to proceed
in forma pauperis after a federal judge has held
that § 1915(g) applies . . . will lead to immediate
termination of the suit. Moreover, the fee remains due, and,
[as] we held in Newlin v. Helman, 123 F.3d 429,
436-37 (7th Cir. 1997), . . . unpaid docket fees incurred by
litigants subject to § 1915(g) lead straight to an order
forbidding further litigation.
Sloan v. Lesza, 181 F.3d 857, 859 (7th Cir. 1999)
(dismissing appeal and ordering clerk not to file future
documents until defendant pays outstanding fees and sanctions
in all civil actions).
these reasons, this case will be dismissed, the filing fee
assessed, and Cunningham will continue to be restricted until
he has paid in full all outstanding filing fees and sanctions
imposed by any federal court. The restriction imposed by this
order does not prohibit Cunningham from filing a notice of
appeal in this case nor “impede him from making any
filings necessary to protect him from imprisonment or other
confinement, but . . . [it does] not let him file any paper
in any other suit . . . until he pays the money he
owes.” Support Sys. Int’l v. Mack, 45
F.3d 185, 186 (7th Cir. 1995).
I note that Cunningham has been restricted from filing
several lawsuits without paying the filing fee in the past
two weeks. See Cunningham v. Boonstra, 3:16-cv-447
(N.D. Ind. Aug. 5, 2016) (DE 5); Cunningham v.
Indiana, No. 3:16-cv-397 (N.D. Ind. Aug. 8, 2016) (DE
21); Cunningham v. Keefer, No. 3:16-cv-396 (N.D.
Ind. Aug. 12, 2016) (DE 13). While it is important for the
clerk of this court to document any attempt Cunningham makes
to violate this order, it is only necessary to do so in one
case. The clerk has already begun making notations in Case
No. 3:16-cv-447, so future violations of this order should be
noted in that case, rather than in this one.
in forma pauperis petition (DE 3) is DENIED;
this cause of action is DISMISSED WITHOUT PREJUDICE;
Travis Scott Cunningham, IDOC # 156774, is ORDERED to pay
(and the facility having custody of him to automatically
remit) to the clerk of this court 20 percent of the money he
receives for each calendar month during which he receives
$10.00 or more, until the $400.00 filing fee is paid in full;
clerk of court is DIRECTED to return, unfiled, any papers
filed in any case by or on behalf of Travis Scott Cunningham
(except for a notice of appeal or unless filed in a criminal
or habeas corpus proceeding) until he has paid in full all
outstanding fees and sanctions in all civil actions in any
clerk is ORDERED to note any attempted filings in violation
of this order on the docket of Case No. 3:16-cv-477; and
clerk is DIRECTED to ensure that a copy of this order is
mailed to each facility where the plaintiff is housed ...