Lilly, Warren G. v. Wallace, Pamela , 252 F. App'x 92 ( 2007 )

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted October 17, 2007*
Decided October 22, 2007
Before
Hon. FRANK H. EASTERBROOK, Chief Judge
Hon. DANIEL A. MANION, Circuit Judge
Hon. MICHAEL S. KANNE, Circuit Judge
No. 07-1291 Appeal from the United
States District Court for the
WARREN GAMEAL LILLY, JR., Western District of Wiscon-
Plaintiff-Appellant, sin.
v.
No. 06-C-692-C
PAMELA WALLACE, et al., Barbara B. Crabb, Chief
Defendants-Appellees. Judge.
Order
Warren Lilly, a prisoner of Wisconsin, tendered a civil complaint together with
an application for leave to proceed as a pauper under 28 U.S.C. §1915. The district
court concluded that Lilly is ineligible for that status because at least three of his
prior suits or appeals had been dismissed on the grounds specified in §1915(g). The
judge therefore told Lilly that he must pay the normal filing fee before his case
could commence. When Lilly failed to pay, the suit was dismissed.
The district court concluded that Lilly had accumulated four “strikes”: two each
in Busk v. Frank, No. 06-C-575-CNC (E.D. Wis. Sept. 26, 2006), and Lilly v. Tor-
horst, No. 06-C-08-C (W.D. Wis. Feb. 13, 2006), appeal dismissed, No. 06-1536 (7th
* Appellees notified the court that they had not been served with process and would not partici-
pate in the appeal. After examining appellant’s brief and the record, we have concluded that oral ar-
gument is unnecessary. See Fed. R. App. P. 34(a); Cir. R. 34(f).
No. 07-1291 Page 2
Cir. Apr. 20, 2006). Lilly was one of two plaintiffs in Busk, and the district court re-
lied on Boriboune v. Berge, 391 F.3d 852 (7th Cir. 2004), for the proposition that all
plaintiffs receive “strikes” when a joint suit is dismissed as frivolous or otherwise
covered by §1915(g). Lilly reads this as saying that because there were two plain-
tiffs the district judge counted two strikes for each, which would be a mistake but is
not what the judge did. Instead the judge counted Busk as two because there was
both a suit (dismissed as frivolous) and an appeal. That’s not right, however, be-
cause Busk appealed on his own behalf only. So Busk counts only once against Lilly.
But Torhorst counts twice, because the district judge not only dismissed the suit
as frivolous but also certified that an appeal would be frivolous, and this court
agreed, denying Lilly permission to appeal as a pauper. Thus Torhorst produced two
countable “suits or appeals” under §1915(g). See Newlin v. Helman, 123 F.3d 429(7th Cir. 1997). And there are more. Lilly v. Jess, No. 05-C-490-C (W.D. Wis. Oct.
20, 2005), was dismissed as frivolous, and we deemed the appeal frivolous as well,
No. 05-4314 (7th Cir. July 19, 2006). That’s two more, for a total of five strikes; we
need not search for additional litigation that Lilly may have filed.
This means not only that the district court was right to demand that Lilly pre-
pay the full fee but also that our order allowing him to proceed as a pauper in this
court is incorrect and is now rescinded. This does not relieve Lilly of the need to pay
the $455 filing and docket fees for this appeal, however; the district court will collect
these fees from Lilly’s prison trust account through the mechanism established by
§1915(b). What is more, if Lilly again tries to commence a civil suit or appeal with-
out prepaying the necessary fees, or meeting the imminent-danger standard of
§1915(g), we will enter an order directing the clerks of all courts within this circuit
to return his papers unfiled, under the approach of Newlin and Support Systems In-
ternational, Inc. v. Mack, 45 F.3d 185 (7th Cir. 1995).
AFFIRMED