Mustafa Ozsusamlar v. David Szoke , 669 F. App'x 795 ( 2016 )

NONPRECEDENTIAL DISPOSITION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 27, 2016*
Decided October 28, 2016
Before
WILLIAM J. BAUER, Circuit Judge
FRANK H. EASTERBROOK, Circuit Judge
MICHAEL S. KANNE, Circuit Judge
No. 15-1841
MUSTAFA OZSUSAMLAR, Appeal from the United States District
Plaintiff-Appellant, Court for the Southern District of Illinois.
v. No. 3:11-cv-844-DGW
DAVID SZOKE, Donald G. Wilkerson,
Defendant-Appellee. Magistrate Judge.
ORDER
Mustafa Ozsusamlar, a federal prisoner, brought suit under Bivens v. Six
Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), contending that
prison physician David Szoke violated the Eighth Amendment by deliberately
withholding necessary medical treatment for a nasal infection, dental problems, an
inguinal hernia, and kidney stones. A magistrate judge, presiding by consent,
see 28 U.S.C. § 636(c), granted summary judgment for Szoke, reasoning that Ozsusamlar
* We have unanimously agreed to decide the case without oral argument because
the briefs and record adequately present the facts and legal arguments, and oral
argument would not significantly aid the court. See FED. R. APP. P. 34(a)(2)(C).
No. 15-1841 Page 2
had not introduced evidence from which a jury reasonably could conclude that Szoke’s
treatment was plainly deficient. Ozsusamlar has appealed that decision, but after the
parties had filed their briefs we discovered that he sought and obtained leave to
proceed with this appeal in forma pauperis despite knowing he was ineligible to do so
because he already had accumulated three “strikes” under the Prison Litigation Reform
Act. See 28 U.S.C. § 1915(g). We thus dismiss his appeal.
Before Ozsusamlar brought this suit in September 2011, the Southern District of
New York already had dismissed at least three of his civil cases for failure to state a
claim. See Ozsusamlar v. Tulman, No. 1:08-cv-05824-KMW (S.D.N.Y. June 27, 2008)
(dismissing complaint for failure to state claim and warning of consequences of
accumulating three strikes); Ozsusamlar v. Southwell, No. 1:07-cv-05756-KMW (S.D.N.Y.
June 18, 2007) (dismissing complaint for failure to state claim and for asserting claims
against immune party), appeal dismissed, No. 07-5401-pr (2nd Cir. June 25, 2009)
(dismissing appeal because it lacked “arguable basis in law or fact”); Ozsusamlar v.
Campanella, No. 1:06-cv-5424-MBM (S.D.N.Y. July 18, 2006) (dismissing complaint
“pursuant to 28 U.S.C. § 1915(e)(2)”); see also Ozsusamlar v. Ponds, 1:04-cv-02047-MBM
(S.D.N.Y. Mar. 16, 2004) (explaining that complaint was being dismissed for lack of
subject-matter jurisdiction, improper venue, and failure to state claim). But Ozsusamlar
did not disclose these decisions when he applied to the district court for leave to
proceed IFP against Dr. Szoke.
Then in 2013, while the action against Dr. Szoke was ongoing in the Southern
District of Illinois, Ozsusamlar filed another civil-rights lawsuit in the Southern District
of New York. See Ozsusamlar v. Seidler, 1:13-cv-08415-LAP (S.D.N.Y. Mar. 12, 2014).
The district court ordered him to show cause why his IFP application should not be
denied under 28 U.S.C. § 1915(g). The court explained that because Ozsusamlar already
had accumulated at least three strikes he could not proceed unless he prepaid the full
filing fee. Ozsusamlar responded that he could pay the fee in installments, but he did
not dispute that he had accumulated three strikes. The district court dismissed the
action in March 2014.
A year later the district court in Illinois entered summary judgment for
Dr. Szoke. Ozsusamlar sought leave from the district court to proceed IFP on appeal,
and, once again, he failed to disclose his three-strike status. The district court, still
unaware of Ozsusamlar’s litigation history, granted IFP.
No. 15-1841 Page 3
Ozsusamlar perpetrated a fraud on the district court and this court by not
disclosing his ineligibility to proceed IFP. See Ammons v. Gerlinger, 547 F.3d 724, 725
(7th Cir. 2008) (“A litigant who knows that he has accumulated three or more frivolous
suits or appeals must alert the court to that fact.”); Sloan v. Lesza, 181 F.3d 857, 858–59
(7th Cir. 1999). This misconduct is grounds for immediately terminating this appeal.
See Hoskins v. Dart, 633 F.3d 541, 543–44 (7th Cir. 2011); Ammons, 547 F.3d at 725.
Accordingly, we DISMISS the appeal. Ozsusamlar has 14 days from the date of
this order to pay the appellate fees of $505. We also will enter an order directing the
clerks of all courts in this circuit to return unfiled all papers he submits (other than
collateral attacks on his imprisonment) until all outstanding fees are paid. See Sloan,
181 F.3d at 859; Support Sys. Int’l, Inc. v. Mack, 45 F.3d 185, 186 (7th Cir. 1995).