NONPRECEDENTIAL DISPOSITION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 March 14, 2012*
Decided March 29, 2012
Before
DANIEL A. MANION, Circuit Judge
ILANA DIAMOND ROVNER, Circuit Judge
DAVID F. HAMILTON, Circuit Judge
No. 11‐1549
MYCHAL THOMPSON, Appeal from the United States District
Plaintiff‐Appellant, Court for the Northern District of Illinois,
Eastern Division.
v.
No. 10 C 7380
GLADYSE TAYLOR and NEDRA
CHANDLER, Frederick J. Kapala,
Defendants‐Appellees. Judge.
O R D E R
Mychal Thompson, an inmate at the Dixon Correctional Center in Illinois, appeals
the dismissal of his action under 42 U.S.C. § 1983, alleging that prison conditions resulting
from existing and future overcrowding violate the Eighth Amendment. We affirm.
*
The appellees were not served with process in the district court and are not
participating in this appeal. After examining the appellant’s brief and the record, we have
concluded 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)(C).
No. 11‐1549 Page 2
Thompson’s complaint alleged overcrowded cells and “deplorable” conditions in his
particular unit at the prison (“Unit 61ʺ) and warned that plans to add inmates would
exacerbate those conditions. These conditions, he says, already include an inadequate
number of toilets and showers, exposed electrical wiring, leaky ceilings covered with mold
and mildew, emergency exits in disrepair, and no evacuation procedures. When he filed his
complaint in late 2010, there were allegedly about 110 inmates in his unit, with plans to add
around 60 more the next year.
The district court screened Thompson’s complaint, see 28 U.S.C. § 1915A, and
dismissed it for three reasons. First, Thompson lacked standing to challenge overcrowding
that had not yet occurred. Second, Thompson alleged that he was merely “in the process of
exhausting administrative remedies” and therefore had filed suit prematurely. Third, he
failed to disclose his complete litigation history, specifically a prior lawsuit (also about
overcrowding) in which he was assessed a “strike” under 28 U.S.C. § 1915(g) for failure to
state a claim, despite certifying to the court that the information he had supplied was true;
in the court’s view, Thompson’s omission amounted to a “fraud” on the court, and the
appropriate sanction was dismissal with prejudice.
On appeal, Thompson first attacks the decision that he lacked standing to challenge
current overcrowding and the inevitable addition of more inmates, and he notes that a
contingent of new inmates did arrive in summer 2011. Thompson’s allegations about future
overcrowding are insufficient to establish an injury in fact, a requirement for standing,
see Wis. Right to Life State PAC v. Barland, 664 F.3d 139, 146–47 (7th Cir. 2011); Goldhamer v.
Nagode, 621 F.3d 581, 585 (7th Cir. 2010), and that the prison did later increase the Unit 61
inmate population does not change this result, because standing must exist at the
commencement of litigation. See Parvati Corp. v. City of Oak Forest, 630 F.3d 512, 516 (7th Cir.
2010); Pollack v. United States DOJ, 577 F.3d 736, 743 n.2 (7th Cir. 2009).
The district court did, however, overlook Thompson’s allegations of current
overcrowding and other “deplorable” conditions, but this is inconsequential because the
district court supported its decision with two other reasons. First, Thompson cannot show
that his failure to exhaust his administrative remedies should be excused. He argues that his
failure to exhaust administrative remedies before filing suit is excusable because prison
officials impeded his ability to exhaust—namely, by refusing to give him the necessary
forms to appeal to the Administrative Review Board. It is true that a grievance process is
not “available” for exhaustion purposes if prison officials prevent its use, see Dale v. Lappin,
376 F.3d 652, 656 (7th Cir. 2004), but here grievance procedures were available. Thompson
acknowledges in his brief that the Board responded to his grievance even without the
No. 11‐1549 Page 3
necessary forms, and did so within about two months after he submitted his initial
grievance (well within the suggested six‐month period, see 20 ILL. ADM. CODE § 505.850(f).)
Second, he cannot show that the district court clearly erred by determining his
certification of his litigation history was fraudulent or abused its discretion in sanctioning
him with dismissal. He argues that he did not intentionally misrepresent his litigation
history to the district court, asserting that his omission was an oversight because he was
never assessed filing fees nor did he receive an order from the court disposing of that
uncited case. See Thompson v. Cook Cnty., No. 1:01‐cv‐7124 (N.D. Ill. Oct. 23, 2001). But the
court did not err in determining that Thompson’s misrepresentation was fraudulent and
grounds for dismissal. See Hoskins v. Dart, 633 F.3d 541, 543 (7th Cir. 2011). A district court
relies on a litigant’s description of his litigation history in managing its docket, including
any possible application of the three‐strike requirement of 28 U.S.C. § 1915(g). Further, as
the court noted, the civil‐rights complaint form that Thompson submitted to the court
warned—in capital letters—that a party’s failure to describe additional lawsuits filed may
result in dismissal of the case. The court here adequately justified its decision to sanction
Thompson with dismissal of his action. See Hoskins, 633 F.3d at 543–44.
AFFIRMED.