Heimermann, Scott A. v. Litscher, Jon E., 337 F.3d 781

337 F.3d 781

7th Cir.

2003

SCOTT A. HEIMERMANN v. JON E. LITSCHER, et al.

No. 02-3667

United States Court of Appeals for the Seventh Circuit

Decided July 18, 2003

Appeal from the United States District Court for the Western District of Wisconsin. No. 02-C-411-C—Barbara B. Crabb, Chief Judge. Submitted June 25, 2003.

Before BAUER, COFFEY, and EVANS, Circuit Judges.

PER CURIAM. Wisconsin inmate Scott Heimermann has filed numerous frivolous lawsuits in the federal courts, earning himself three “strikes” under 28 U.S.C. § 1915(g). He is thus prohibited from bringing a civil action in forma pauperis unless he is “under imminent danger of serious physical injury.”¹

In July 2002 Heimermann filed another proposed complaint, requesting leave to proceed in forma pauperis. He devoted the 64-page complaint primarily to contesting his murder conviction, alleging that he was framed by unspecified officials at the Milwaukee County District Attorney‘s office and the City of Milwaukee Police Department, who then conspired with officials at the Wisconsin Department of Corrections to prevent him from clearing his name. His narrative also told how in 1998 prison officials recruited him to assist with a “sting” operation against a prison guard, but afterwards kept him in the general prison population, leaving him open to reprisal as a “snitch” and thus in imminent danger of serious physical injury. He asked the district court to order him transferred to a minimum-security facility or released from prison outright. The district court concluded that it could not reasonably infer imminent danger of serious physical injury from the facts alleged: the sting operation had happened four years earlier, and Heimermann did not even allege that the target of that investigation still worked at the prison. The court therefore denied Heimermann‘s request for leave to proceed in forma pauperis.

Heimermann requested reconsideration. In his motion, he argued that his complaint sufficiently alleged that he was in imminent danger of reprisal from guards and fellow inmates during the period of the investigation, from June 1998 through June 2000. He then argued that “the proper focus when examining an inmate‘s complaint filed pursuant to § 1915(g) must be the imminent danger faced by the inmate at the time of the alleged incident . . . and not at the time his complaint was filed” (emphasis added). The district court disagreed, concluding that allegations of past imminent danger do not satisfy the requirement of § 1915(g), and denied Heimermann‘s motion to reconsider. Heimermann appealed.²

We agree with the district court. The “imminent danger” exception to § 1915(g)‘s “three strikes” rule is available “for genuine emergencies,” where “time is pressing” and “a threat . . . is real and proximate.” Lewis v. Sullivan, 279 F.3d 526, 531 (7th Cir. 2002). Any danger Heimermann might have experienced between 1998 and 2000 does not supply a basis for an exception in July 2002. And although Heimermann, apparently understanding this, now argues that he did experience imminent danger at the time his complaint was filed, his change of course at this stage of the proceedings is unavailing.

AFFIRMED.

A true Copy:

Teste:

Clerk of the United States Court of Appeals for the Seventh Circuit

Notes

He has also been subjected to a series of fines and filing restrictions. See, e.g., (order imposing $5,000 sanction for repeated frivolous filings).

Ironically, Heimermann has paid the full $105 appellate filing fee.