Michael C. Day v. City of Chicago

NONPRECEDENTIAL DISPOSITION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 April 19, 2013*
Decided May 6, 2013

Before

FRANK H. EASTERBROOK, Chief Judge

ANN CLAIRE WILLIAMS, Circuit Judge

DAVID F. HAMILTON, Circuit Judge

No. 12-1105 Appeal from the United
States District Court for the
MICHAEL DAY, Northern District of Illinois,
Plaintiff-Appellant, Eastern Division.
v.
No. 09 C 2397
CITY OF CHICAGO, ILLINOIS, et al., Joan B. Gottschall, Judge.
Defendants-Appellees.

Order

Michael Day’s complaint contends that over a span of three decades officers of Chi-
cago’s police harassed him, tried to lure him into committing crimes, tried to poison
him by placing insects in his room at the YMCA and asking a pest-control firm to spray
the room, and thwarted his efforts to obtain employment. The complaint names other
defendants as well. The district court dismissed the bulk of the complaint under 28
U.S.C. §1915(e)(2) but permitted Day to proceed on his claim that officers wrongly told
potential employers about his arrest record.

* After examining the briefs and the record, we have concluded that oral argument is unnecessary.
See Fed. R. App. P. 34(a); Cir. R. 34(f).
No. 12-1105 Page 2

Day then filed three amended complaints, each of which the district court dismissed
after concluding that Day was unable or unwilling to limit his allegations to those that
the judge thought presented a plausible claim. The third amended complaint was dis-
missed for that reason, and because the judge deemed its 138 paragraphs needlessly
long and complex. See Fed. R. Civ. P. 8(a).

Day’s principal argument on appeal is that his allegation that the police have tried to
poison him should not have been dismissed, because it would be “physically possible”
for the police to harm him. The question is not what is possible but whether the com-
plaint narrates a plausible claim. See, e.g., Ashcroft v. Iqbal, 556 U.S. 662 (2009). The Su-
preme Court held in Neitzke v. Williams, 490 U.S. 319 (1989), that, when a plaintiff seeks
to litigate without prepaying all required fees, district judges may screen out claims that
are fantastic or delusional. The district judge did not abuse her discretion in concluding
that Day’s claim of poisoning meets that standard. Indeed, given Iqbal, a complaint in a
fully paid case would have to do more than Day’s did to survive dismissal.

Since 1996 Day has filed at least 17 other federal lawsuits. See In re Day, No. 11 C
7205 (N.D. Ill. Oct. 13, 2011) (collecting cases). Of these, at least 11 (in addition to the
current appeal) have reached this court. See In re Day, No. 12‐3226 (7th Cir. Dec. 20,
2012) (dismissed for failure to pay docketing fee); In re Day, No. 12‐2611 (7th Cir. Dec.
20, 2012) (same); Day v. Multi‐Temp, No. 11‐2266 (7th Cir. Jan. 11, 2012) (dismissed for
want of prosecution); Day v. Des Plaines School District, No. 11‐3075 (7th Cir. Dec. 30,
2011) (same); Day v. City of Chicago, No. 10‐1551 (7th Cir. May 14, 2010) (dismissed for
lack of jurisdiction); Day v. City of Chicago, No. 07‐1146 (7th Cir. Jan. 10, 2008) (dismissed
for want of prosecution); Day v. Oak Park School District, No. 06‐2848 (7th Cir. Aug. 24,
2007) (same); Day v. Sorci, No. 01‐2800 (7th Cir. Sept. 3, 2002) (affirmed); Day v. Chicago
Board of Education, No. 00‐4158 (7th Cir. Sept. 10, 2001) (affirmed); Day v. Lincoln Insur-
ance Agency, No. 00‐2627 (7th Cir. Jan. 10, 2001) (affirmed); Day v. Chicago Board of Educa-
tion, No. 99‐3890 (7th Cir. Aug. 3, 2000) (affirmed). Most of these suits were frivolous or
were abandoned before the court could reach the merits.

In October 2011 the Executive Committee of the United States District Court for the
Northern District of Illinois entered an order requiring leave of court before Day could
file new suits. He attempted to file another and, when the Executive Committee denied
permission, took an appeal. But he abandoned that appeal by failing to pay the docket-
ing fee. That appeal was No. 12-3226, mentioned above. This sequence suggests that
Day plans to continue his campaign of litigation.

The current appeal is frivolous. We give Day 14 days to show cause why the court
should not penalize the appeal under Fed. R. App. P. 38. One possible sanction would
be an order revoking Day’s privilege of litigating in forma pauperis and requiring him to
prepay all required fees for any future suits or appeals. Another possible sanction
No. 12-1105 Page 3

would be a monetary fine, which, if unpaid, could lead to entry of a Mack order. See
Support Systems International, Inc. v. Mack, 45 F.3d 185 (7th Cir. 1995). We invite Day to
discuss both whether a sanction is appropriate and, if so, which the court should
choose.