Heimermann, Scott A. v. Litscher, Jon E. ( 2003 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 02-3667
SCOTT A. HEIMERMANN,
Plaintiff-Appellant,
v.
JON E. LITSCHER, et al.,
Defendants-Appellees.
____________
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, 2003Œ—DECIDED JULY 18, 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
Œ
We granted the appellees’ motion for non-involvement due to
lack of service in the district court. Accordingly, this appeal has
been submitted without the filing of a brief by the appellees. After
examining the appellant’s brief and the record, we conclude that
oral argument is unnecessary. Thus, the appeal is submitted on
the appellant’s brief and the record. See Fed. R. App. P. 34(a)(2).
2 No. 02-3667
physical injury.”1
In July 2002 Heimermann filed another proposed com-
plaint, 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 De-
partment, who then conspired with officials at the Wis-
consin 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 pro-
ceed 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
1
He has also been subjected to a series of fines and filing re-
strictions. See, e.g., Heimermann v. McCaughtry, No. 02-4033 (7th
Cir. Feb. 4, 2003) (order imposing $5,000 sanction for repeated
frivolous filings).
No. 02-3667 3
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 recon-
sider. 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
2
Ironically, Heimermann has paid the full $105 appellate filing
fee.
USCA-02-C-0072—7-18-03