The opinion of the court was delivered by: Honorable Paul L. Maloney
OPINION VACATING ORDER GRANTING LEAVE TO PROCEEDIN FORMAPAUPERIS - THREE STRIKES
Plaintiff Floyd Jennings, a prisoner incarcerated at Chippewa Correctional Facility, filed a complaint pursuant to 42 U.S.C. § 1983. Plaintiff sought leave to proceed in forma pauperis, and leave initially was granted (docket #4). Upon further review of Plaintiff's filings in the Eastern District of Michigan, it is now apparent that Plaintiff has filed at least three lawsuits that were dismissed as frivolous, malicious or for failure to state a claim. He therefore is barred from proceeding in forma pauperis under 28 U.S.C. § 1915(g). The Court will vacate its prior order granting pauper status and order Plaintiff to pay the $350.00 civil action filing fee within twenty-eight (28) days of this opinion and accompanying order. If Plaintiff fails to do so, the Court will order that his action be dismissed without prejudice. Even if the case is dismissed, Plaintiff will be responsible for payment of the $350.00 filing fee in accordance with In re Alea, 286 F.3d 378, 380-81 (6th Cir. 2002).
The Prison Litigation Reform Act (PLRA), Pub. L. No. 104-134, 110 Stat. 1321 (1996), which was enacted on April 26, 1996, amended the procedural rules governing a prisoner's request for the privilege of proceeding in forma pauperis. As the Sixth Circuit has stated, the PLRA was "aimed at the skyrocketing numbers of claims filed by prisoners -- many of which are meritless -- and the corresponding burden those filings have placed on the federal courts." Hampton v. Hobbs, 106 F.3d 1281, 1286 (6th Cir. 1997). For that reason, Congress put into place economic incentives to prompt a prisoner to "stop and think" before filing a complaint. Id. For example, a prisoner is liable for the civil action filing fee, and if the prisoner qualifies to proceed in forma pauperis, the prisoner may pay the fee through partial payments as outlined in 28 U.S.C. § 1915(b). The constitutionality of the fee requirements of the PLRA has been upheld by the Sixth Circuit. Id. at 1288.
In addition, another provision reinforces the "stop and think" aspect of the PLRA by preventing a prisoner from proceeding in forma pauperis when the prisoner repeatedly files meritless lawsuits. Known as the "three-strikes" rule, the provision states:
In no event shall a prisoner bring a civil action or appeal a judgment in a civil action or proceeding under [the section governing proceedings in forma pauperis] if the prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of the United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious physical injury.
28 U.S.C. § 1915(g). The statutory restriction "[i]n no event," found in § 1915(g), is express and unequivocal. The statute does allow an exception for a prisoner who is "under imminent danger of serious physical injury." The Sixth Circuit has upheld the constitutionality of the "three-strikes" rule against arguments that it violates equal protection, the right of access to the courts, and due process, and that it constitutes a bill of attainder and is ex post facto legislation. Wilson v. Yaklich, 148 F.3d 596, 604-06 (6th Cir.1998); accord Rodriguez v. Cook, 169 F.3d 1176, 1178-82 (9th Cir. 1999); Rivera v. Allin, 144 F.3d 719, 723-26 (11th Cir. 1998); Carson v. Johnson, 112 F.3d 818, 821-22 (5th Cir. 1997).
Plaintiff has been an active litigant in the federal courts in Michigan. In three of Plaintiff's lawsuits, the Court entered dismissals on the grounds that they were frivolous, malicious or failed to state a claim. See Jennings v. Garrett, No. 2:08-cv-12463 (E.D. Mich. July 1, 2008); Jennings v. Weberg et al., No. 2:06-cv-235 (W.D. Mich. Jan. 9, 2007); Jennings v. Gundy et al., No. 1:01-cv-646 (W.D. Mich. Dec. 19, 2001). Plaintiff also previously has been denied leave to proceed in forma pauperis under the three-strikes rule. See Jennings v. Birkett et al., No. 1:08-cv-14405 (E.D. Mich. Dec. 2, 2008).
Plaintiff suggests that he should be allowed to proceed in forma pauperis under the imminent danger exception of § 1915(g). Plaintiff complains that Defendants used excessive force against him in response to a disturbance, notwithstanding their knowledge that he suffered from a mental illness that caused him to act out. He alleges that, during the altercation, his nose was broken. He contends that Defendants are not treating his broken nose properly and that their failure to treat will cause increasing problems with his breathing through his nose.
As the Court previously concluded, however, the statute clearly bars granting pauper status unless the complaint falls under the exception for an inmate under "imminent danger of serious physical injury." 28 U.S.C. § 1915(g). Plaintiff fails to allege either serious physical injury or that the serious physical injury is imminent in this case.
Although Congress also did not define "serious physical injury," various courts have interpreted the meaning of the phrase. In Ibrahim v. District of Columbia, 464 F.3d 3, 7 (D.C. Cir. 2006), the D.C. Circuit concluded that a "chronic disease that could result in serious harm or even death constitutes 'serious physical injury.'" Id. Similarly, in Brown v. Johnson, 387 F.3d 1344, 1350 (11th Cir. 2004), the Eleventh Circuit found that HIV and Hepatitis C, both chronic and potentially fatal diseases, met the "serious physical injury" requirement. Moreover, in Ciarpaglini v. Saini, 352 F.3d 328, 330 (7th Cir. 2003), the Seventh Circuit recognized that "heart palpitations, chest pains, labored breathing, choking sensations, and paralysis in . . . legs and back" resulting from a denial of medication were serious physical injury. Id. The Eighth Circuit also has addressed the question, concluding that a spreading infection in the mouth that resulted from a lack of proper dental treatment amounted to a serious physical injury. McAlphin v. Toney, 281 F.3d 709, 710 (8th Cir. 2002).
Plaintiff's alleged serious physical injury is an injury to his nose that he contends makes breathing through his nose more difficult. Despite Plaintiff's hyperbolic language, the condition, while irritating and uncomfortable at times, falls short of the sort of conditions that threaten serious harm or death found in Ibrahim, Brown, Ciarpaglini, and McAlphin. The injury therefore is not sufficiently dangerous or impairing to constitute "serious physical injury" as other courts have defined it.
Further, Plaintiff fails to allege that any worsened nasal condition is "imminent." As with "serious physical injury," Congress did not define "imminent danger" in the PLRA. It did, however, choose to use the word "imminent," a word that conveys the idea of immediacy. "Imminent" is "Near at hand . . . impending; on the point of happening; threatening, menacing, perilous. Something which is threatening to happen at once, something close at hand, something to happen upon the instant . . . and on the point of happening." BLACK'S LAW DICTIONARY, 514-15 (6th ed. 1991). "Imminent" is also defined as "ready to take place, near at hand, impending, hanging threateningly over one's head, menacingly near." WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY, 1130 ...