Evans v. Illinois Dept. of Corrections, s. 98-1461

• Decision Date: 05 August 1998
• Docket Number: Nos. 98-1461,98-2050,s. 98-1461
• Citation: 150 F.3d 810
• Parties: William A. EVANS, Plaintiff-Appellant, v. ILLINOIS DEPARTMENT OF CORRECTIONS, Defendant-Appellee, Aaron B. SCRUGGS, Plaintiff-Appellant, v. Edward COHN, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 810

150 F.3d 810

William A. EVANS, Plaintiff-Appellant, v. ILLINOIS DEPARTMENT OF CORRECTIONS, Defendant-Appellee, Aaron B. SCRUGGS, Plaintiff-Appellant, v. Edward COHN, et al., Defendants-Appellees.

Nos. 98-1461, 98-2050.

United States Court of Appeals Seventh Circuit.

Argued July 13, 1998.

Decided Aug. 5, 1998.

William A. Evans, Menard, IL (submitted on briefs), for Plaintiff-Appellant in No. 98-1461.

Aaron B. Scruggs (submitted on briefs), Westville, IN, for Plaintiff-Appellant in No. 98-2050.

Jeffrey A. Modisett, Office of the Attorney General, Indianapolis, IN, for Defendants-Appellees in No. 98-2050.

Before CUMMINGS, ROVNER and DIANE P. WOOD, Circuit Judges.

CUMMINGS, Circuit Judge.

We have consolidated for consideration and decision two cases to specify what information district courts must include in orders denying leave to proceed in forma pauperis because the prisoner has accrued "three strikes" under the Prison Litigation Reform Act of 1996 (PLRA), Pub.L. 104-134, Title VIII, 110 Stat. 1321. Under the PLRA, a prisoner may not bring a civil action or appeal a civil judgment in forma pauperis

if the prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of the United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious physical injury.

28 U.S.C. § 1915(g). When determining whether a prisoner has acquired three strikes under § 1915(g), courts must consider prisoner actions dismissed on any of the three enumerated grounds both before and after the PLRA's enactment. See Abdul-Wadood v. Nathan, 91 F.3d 1023, 1025 (7th Cir.1996). On appeal, we review de novo a district court's three-strike determination. See Rivera v. Allin, 144 F.3d 719, 723 (11th Cir.1998).

In the first of the consolidated cases, Evans v. Illinois Dep't of Corrections, No. 98-1461, the district court denied leave to proceed in forma pauperis because Evans previously had three or more actions dismissed on the grounds that they were frivolous, malicious, or failed to state a claim. Additionally, the district court noted three separate examples: Evans Bey v. Washington, 96-666-JPG; Evans Bey v. Hartwig, 97-191-WDS; and Evans Bey v. Hartwig, 97-241-WLB. This was sufficient to put Evans on notice as to what the district court considered when denying his request to proceed in forma pauperis. Having been notified, Evans bore the burden of showing that the district court incorrectly assessed his litigation history. However, in his Rule 24 motion, Evans does not dispute that he has accumulated three strikes and, therefore, we will not reevaluate the district court's conclusion. Because Evans has previously filed at least three actions which were dismissed as frivolous, malicious, or for failure to state a claim, we deny his request to proceed in forma pauperis on appeal. Evans has 14 days to pay the full $105 filing fee or his appeal will be dismissed for failure to pay the filing fee. See Newlin v. Helman, 123 F.3d 429, 433-34 (7th Cir.), cert. denied by Robinson v. Smith, --- U.S. ----, 118 S.Ct. 707, 139 L.Ed.2d 649 (1998).

In the second of the consolidated cases, Scruggs v. Cohn, No. 98-2050, the district court determined that Scruggs was prohibited under § 1915(g) from proceeding in forma pauperis on appeal but did not specify which cases it relied on when making that...