Campbell, Gary B. v. Clarke, David A. ( 2007 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 06-3138
GARY B. CAMPBELL,
Plaintiff-Appellant,
v.
DAVID A. CLARKE, JR., et al.,
Defendants-Appellees.
____________
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 06-C-560—Lynn Adelman, Judge.
____________
SUBMITTED MARCH 9, 2007—DECIDED APRIL 2, 2007
____________
Before EASTERBROOK, Chief Judge, and WOOD and
WILLIAMS, Circuit Judges.
EASTERBROOK, Chief Judge. The district court dismissed
this suit on the ground that plaintiff Gary Campbell had
abused the privilege of litigating in forma pauperis. 2006
U.S. Dist. LEXIS 52819 (E.D. Wis. July 26, 2006). The
judge then certified that Campbell’s appeal may not
proceed in forma pauperis because it is not taken in good
faith. 2006 U.S. Dist. LEXIS 80250 (E.D. Wis. Nov. 1,
2006). That is so, the judge explained, not only because
of Campbell’s efforts to defraud the court but also be-
cause the litigation is substantively frivolous. Campbell
maintains that the Milwaukee County Jail violates the
Constitution because it provides computer-assisted legal
2 No. 06-3138
research rather than a library of physical law books, but
(a) Campbell has legal counsel in all criminal cases
pending against him, and access to legal materials is
required only for unrepresented litigants, see Bounds v.
Smith, 430 U.S. 817, 830-32 (1977), and (b) proof that a
lack of access to legal materials has undermined a concrete
piece of litigation is an essential component of any claim
along these lines, see Lewis v. Casey, 518 U.S. 343 (1996),
yet Campbell has not alleged that any of his suits has
foundered because he could not conduct research.
Campbell, a frequent pro se litigant, has filed most of his
suits in the Western District of Wisconsin. Following the
amendment to 28 U.S.C. §1915(b) made by the Prison
Litigation Reform Act, the Western District has allowed
Campbell to litigate after prepaying partial filing fees;
remaining fees and costs are to be collected over time from
Campbell’s prison trust account under the PLRA’s terms.
In April 2006 Chief Judge Crabb of the Western District
concluded that Campbell had manipulated the timing of
deposits into, and withdrawals from, his prison trust
account to ensure that the account was depleted on the
days when the prison would transfer available funds to
the court under the PLRA. In response, Chief Judge Crabb
denied Campbell permission to file a particular suit in
forma pauperis. Campbell v. Clarke, 2006 U.S. Dist. LEXIS
21187 (W.D. Wis. Apr. 19, 2006).
If the caption of that decision seems familiar, it should
be—for it is the same caption as the one on this opinion.
About three weeks after Chief Judge Crabb dismissed
Campbell v. Clarke in the Western District of Wisconsin,
Campbell filed a complaint with the same fundamental
allegations in the Eastern District. Somehow it slipped his
mind to inform the Eastern District that Chief Judge
Crabb had refused to permit the litigation unless Campbell
prepaid the filing fee. But Judge Adelman of the Eastern
District found out and dismissed the suit in response to
No. 06-3138 3
this subterfuge. Moreover, Judge Adelman learned that
Chief Judge Crabb had concluded, in still another of
Campbell’s suits, that Campbell had arranged for money
that should have been in his prison trust account to be
deposited in the account of another prisoner, where it
would not be tapped to pay filing fees and other costs. This
led Chief Judge Crabb to conclude that Campbell has
forfeited his entitlement to proceed in forma pauperis
in any litigation until all fees, for all of his past and
current cases, have been paid in full. Campbell v.
Nyklewick, 2006 U.S. Dist. LEXIS 31921 (W.D. Wis. May 9,
2006).
Campbell’s application for leave to proceed in forma
pauperis in this court ignores all of these problems. He
does not mention his attempts to deceive Chief Judge
Crabb and Judge Adelman. He does not try to explain
why he should be allowed to file the same suit in multiple
districts, fishing for a judge who will overlook his manipu-
lative tactics. He does not respond to Judge Adelman’s
conclusion that the suit is frivolous on the merits; he
ignores the fact that he is represented by counsel in all
pending prosecutions and cannot identify any civil suit
in which lack of physical access to law books has caused
prejudice.
Chief Judge Crabb concluded that a prisoner who tries
to evade the payment of fees should be treated as if he had
“struck out” under 28 U.S.C. §1915(g) by filing three or
more frivolous suits or appeals. We agree with that
approach. Several decisions hold that prisoners who
continue litigating without paying required filing fees or
sanctions forfeit their eligibility for any favorable treat-
ment. See, e.g., Thurman v. Gramley, 97 F.3d 185 (7th Cir.
1996); Alexander v. United States, 121 F.3d 312 (7th Cir.
1997). Cf. Support Systems International, Inc. v. Mack, 45
F.3d 185 (7th Cir. 1995); Sassower v. ABA, 33 F.3d 733(7th Cir. 1994).
4 No. 06-3138
Section 1915 allows, but does not compel, courts to
permit destitute plaintiffs to proceed without prepayment
of fees. Section 1915(g) identifies circumstances in which
courts must withhold this opportunity; for other good
reasons, courts may withhold this privilege whether or
not the statute commands it. Cf. Martin v. District of
Columbia Court of Appeals, 506 U.S. 1 (1992) (inaugurat-
ing the Supreme Court’s current practice of requiring
pestiferous litigants to prepay all fees and print their
petitions for certiorari). Plaintiffs who attempt to deceive
federal judges, and evade their obligation to pay all
required fees and costs, cannot expect favorable treatment
on matters of discretion. This was established before the
PLRA’s enactment in 1996, see Reneer v. Sewell, 975 F.2d
258 (6th Cir. 1982); Collier v. Tatum, 722 F.2d 653 (11th
Cir. 1983), and the changes made in 1996 did not remove
district judges’ authority to curtail misuse of the statute.
See Roller v. Gunn, 107 F.3d 227, 233 (4th Cir. 1997).
What is more, Campbell has “struck out” under §1915(g),
which the PLRA added to the statute. Let us put all of his
suits other than the two episodes of Campbell v. Clarke
to one side. The first iteration of this suit in the Western
District of Wisconsin was substantively frivolous, given
Bounds and Lewis, as was the second iteration in the
Eastern District of Wisconsin. This appeal is equally
frivolous and is the final “strike.” We are confident that
some of Campbell’s other suits or appeals qualify under
§1915(g), but three is enough.
Should Campbell attempt to file any further civil litiga-
tion in any federal court without prepaying all required
fees, or meeting the imminent-danger standard of
§1915(g), we will enter an order under Mack precluding
him from filing further civil suits whether or not he pays
in advance. As we explained in Thurman and Newlin v.
Helman, 123 F.3d 429 (7th Cir. 1997), that is the only
No. 06-3138 5
practical response when prisoners scorn their legal obliga-
tions.
The motion for leave to proceed on appeal in forma
pauperis is denied, and the judgment is summarily af-
firmed. Campbell must be aware that this does not relieve
him of the need to pay the $455 filing and docket fees for
this appeal. Those fees, and all other obligations, must be
satisfied before Campbell can resume his litigious ways.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—4-2-07