Lewis v. Sullivan

• Decision Date: 02 March 2001
• Docket Number: No. 00-C-705-C.,00-C-705-C.
• Citation: 135 F.Supp.2d 954
• Parties: William Clifton LEWIS, Petitioner, v. Michael SULLIVAN, Secretary, Wisconsin Department of Corrections, Respondent, and United States of America, Intervenor.
• Court: U.S. District Court — Western District of Wisconsin

135 F.Supp.2d 954

William Clifton LEWIS, Petitioner, v. Michael SULLIVAN, Secretary, Wisconsin Department of Corrections, Respondent and United States of America, Intervenor.

No. 00-C-705-C.

United States District Court, W.D. Wisconsin.

March 2, 2001.

COPYRIGHT MATERIAL OMITTED

William C. Lewis, Waupun, WI, pro se.

Robert A. Selk, Assistant Attorney General, Madison, WI, Peggy A. Lautenschlager, United States Attorney, Western District of Wisconsin, Madison, WI, for Michael J. Sullivan.

John Schumann, Trial Attorney, U.S. Dept. of Justice-Civil Div., Washington, DC, for United States of America.

OPINION AND ORDER

CRABB, District Judge.

Petitioner William Clifton Lewis is challenging the constitutionality of the Prison Litigation Reform Act's "three strikes" provision, 28 U.S.C. § 1915(g), which bars a prisoner from proceeding in forma pauperis if he has had three prior actions dismissed because they were frivolous, malicious or failed to state a claim upon which relief might be granted, unless the prisoner is in imminent danger of serious physical injury. Petitioner is an inmate at Waupun Correctional Institution in Waupun, Wisconsin. His proposed complaint is brought against respondent Michael Sullivan pursuant to 42 U.S.C. § 1983 because, he contends, respondent has violated his Eighth Amendment rights by denying him needed treatment for the post traumatic stress disorder from which he suffers. (Since petitioner first tried to assert this claim, Michael Sullivan has been replaced as Secretary by Jon Litscher. Secretary Litscher will be substituted for Sullivan, pursuant to Fed.R.Civ.P. 25(d).)

Petitioner is indigent. The $150 filing fee exceeds 20% of the average monthly deposits to his prison account and 20% of the average monthly balance in his account, see 28 U.S.C. § 1915(b). However, on at least three prior occasions in the past thirteen years, petitioner has been denied leave to proceed in forma pauperis in this district in lawsuits deemed to be legally frivolous. See Lewis v. Goodrich, 88-C-1101, decided December 28, 1988; Lewis v. Eisenga, 91-C-1048-C, decided December 20, 1991; and Lewis v. Coleman, 93-C-491-C, decided August 3, 1993. He is not alleging in his present complaint that he is in imminent danger of physical injury. Therefore, if § 1915(g) is constitutional, he may not proceed with his complaint unless he prepays the entire $150 filing fee.

Petitioner contends that § 1915(g) violates his equal protection and due process rights under the Fifth Amendment to the Constitution by preventing indigent prisoners like him from exercising their fundamental right of access to the courts. He argues that it violates equal protection in two ways: by treating indigent prisoners differently from non-indigent ones and by treating indigent prisoners differently from indigent non-prisoners. He argues that it violates his right to procedural due process because it denies him a federal court forum for his challenge to the allegedly unconstitutional conditions of his confinement and it denies his right to substantive due process because it operates in an irrational and arbitrary means way and creates an irrebutable presumption.

Because petitioner is challenging the constitutionality of a United States statute, the United States was notified, as 28 U.S.C. § 2403 requires. It filed a motion to intervene, which was granted, and it has submitted briefs in opposition to petitioner's challenge to § 1915(g). Both the United States and respondent object to petitioner's request that the court evaluate his complaint for merit and ignore the restriction imposed by 28 U.S.C. § 1915(g). They contend that § 1915(g) is constitutional because it is related rationally to the legitimate governmental end of deterring frivolous prisoner lawsuits.

I conclude that § 1915(g) is unconstitutional unless it is interpreted as applying only to successive lawsuits that do not raise a substantial constitutional claim. If it is read to prohibit indigent prisoners from raising claims involving their fundamental constitutional rights, it constitutes an unconstitutional restriction on their right of access to the courts. Although the federal government has a legitimate interest in deterring the filing of frivolous and malicious lawsuits, it has no legitimate interest in preventing the filing of potentially meritorious claims of violations of fundamental constitutional rights.

RECORD FACTS

Petitioner's trust fund account statement for the period May 20, 2000 to November 21, 2000 shows that the average monthly deposits to his account were $106.35, $98.00 of which came from a Department of Veterans Affairs disability check; his average monthly balance was $6.47. He had $500 in his release account as of November 21, 2000.

The present suit is a new version of a suit petitioner filed in 1998, 98-C-0789-C, in which he alleged that he was being denied treatment for his post traumatic stress syndrome. He contended that the denial violated his rights under the Eighth Amendment and the Americans with Disabilities Act, 42 U.S.C. §§ 12101-12213. He alleged also that he had been designated for transfer to an out-of-state correctional facility, where he would have even less chance of receiving the treatment he needs. Petitioner's first case was dismissed under § 1915(g) because petitioner had had three previous cases dismissed as frivolous and was not alleging imminent danger of physical injury. After petitioner moved for reconsideration challenging the constitutionality of § 1915(g), I appointed counsel to represent him on that issue, but then dismissed the case after the issue was fully briefed when it became apparent that petitioner had not exhausted his administrative remedies before filing in this court. Petitioner filed a motion to reopen his suit in 2000, alleging that he had exhausted his administrative remedies. In an order entered on October 26, 2000, I suggested to petitioner that he file an entirely new suit to avoid the inevitable ruling that his previous suit could not go forward because he had not exhausted his administrative remedies before he filed his suit. See Perez v. Wisconsin Dept. of Corrections, 182 F.3d 532, 534 (7th Cir.1999). Petitioner adopted the suggestion and this suit followed. Petitioner is raising the same issues he raised in his 1998 suit. The parties were given an opportunity to file briefs to supplement those they had filed in the first suit, but only the United States did so.

OPINION

The statute at issue, 28 U.S.C. § 1915, provides in subsection (g) as follows:

In no event shall a prisoner bring a civil action or appeal a judgment in a civil action or proceeding under this section 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.

A. Petitioner's Standing

In order to pursue a challenge to § 1915(g), petitioner must establish that he has standing, that is, he "must allege personal injury fairly traceable to the challenged action." Allen v. Wright, 468 U.S. 737, 751, 104 S.Ct. 3315, 82 L.Ed.2d 556 (1984). Persons alleging denial of access to the court cannot speculate that they will be denied access to the court; they must show with specificity how they have been hindered in their ability to pursue a legal claim. See Lewis v. Casey, 518 U.S. 343, 351, 116 S.Ct. 2174, 135 L.Ed.2d 606 (1996).

Petitioner has made the necessary showing. He cannot even file his constitutional challenge to the prison's alleged failure to provide him essential medical services except by paying a fee that exceeds his entire monthly income. He cannot use any portion of the $500 in his release account for a filing fee because Wis.Admin.Code § DOC 309.466 prohibits disbursements from an inmate's release account for any purpose other than the purchase of adequate clothing for release and for out-of-state release transportation. (One additional exception exists but it is of no use to petitioner if he is not allowed to proceed. If an inmate is required to make an initial partial filing fee, the state has taken the position that § 1915(g) supersedes the department's regulation and requires the prison to deduct the amount of the initial fee from the release account if the inmate has no other means of paying it.)

Petitioner argues that having to pay a fee in excess of his monthly income is an injury he would not suffer if he were not a prisoner and subject to § 1915(g). If he were a non-prisoner and indigent, he could bring a federal lawsuit without paying any fee at all, given his meager financial resources. Alternatively, if he were suing as a prisoner who was not subject to § 1915(g), he would be required to pay an initial partial filing fee of only 20% of 1) the greater of the average monthly deposits to his prison account or 2) the average monthly balance in his account for the preceding six months, which in his case would come out to approximately $20.00. Thereafter, he would be required to make $20 monthly payments to the court until the full filing fee was paid (assuming that his income remained approximately $100 a month). See 28 U.S.C. § 1915(b)(2).

Respondent and the United States argue that petitioner has not sustained any injury because he has access to funds that would enable him to pay the full filing fee. If he simply accumulated his Department of Veterans' Affairs disability checks for two months, they assert, he would have more than enough money to cover the filing fee. However, the fact is that petitioner would suffer an injury if he is required to pay out the bulk of two months' receipts all at once, when other persons are not required to pay the full filing fee as a condition of proceeding in federal court...