The opinion of the court was delivered by: Honorable Robert Holmes Bell
OPINION DENYING LEAVE TO PROCEEDIN FORMAPAUPERIS - THREE STRIKES
Plaintiff Eddie Lee Thompson, a state prisoner incarcerated at G. Robert Cotton Correctional Facility, filed a complaint pursuant to 28 U.S.C. § 1350. On March 11, 2010, the Court granted Plaintiff leave to proceed in forma pauperis. However, after review of Plaintiff's prior filings in the Western and Eastern Districts of Michigan, it has become apparent that leave to proceed in forma pauperis was improperly granted. Because Plaintiff has filed at least three lawsuits which were dismissed for failure to state a claim, he is barred from proceeding in forma pauperis under 28 U.S.C. § 1915(g). The Court will vacate its prior order to proceed in forma pauperis 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 of failure to state a claim. See Thompson v. Theut, 2:06-cv-258 (W.D. Mich. Mar. 9, 2007); Thompson v. Ingham County Circuit Court Clerk, 2:06-cv-239 (W.D. Mich. Oct. 19, 2006); Thompson v. Thompson et al., 2:05-cv-73451-DT (E.D. Mich. Sept. 16, 2005).
Plaintiff contends that he is entitled to proceed in forma pauperis in this action under the imminent danger exception of Section 1915(g). Specifically, Plaintiff claims that "Defendants false reasons for holding Plaintiff in prison until July 23, 2011, without honoring [his] March 14, 2009 earliest release date,  circumvent[s] legitimate court orders or MDOC procedures, thereby representing the likelihood of imminent danger." (Compl. at 2-3, docket #1.)
To satisfy the exception under Section 1915(g), Plaintiff must allege a serious physical injury. Although Congress did not define "serious physical injury," various courts have interpreted the meaning of the phrase. In Ibrahim v. Dist. 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 has not alleged any serious physical injury in his complaint. Therefore, he does not satisfy the exception under Section 1915(g).
Even if Plaintiff had alleged a serious physical injury, he still fails to satisfy the "imminent" requirement. Congress did not define "imminent danger" in the PLRA, but it is significant that Congress chose to use the word "imminent," a word that conveys the idea of immediacy. "Imminent" is "[n]ear 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 THIRDNEW INTERNATIONAL DICTIONARY, 1130 (1976). "Imminent danger" is "such an appearance of threatened and impending injury as would put a reasonable and prudent man to his instant defense." BLACK'S LAW DICTIONARY, 515 (6th ed. 1991).
In a recent decision, the Sixth Circuit recognized the standard adopted by other circuit courts:
While the Sixth Circuit has not defined the term "imminent danger" for purposes of this section, other Circuits have held that to meet the requirement, the threat or prison condition "must be real and proximate" and the danger of serious physical injury must exist at the time the complaint is filed. See, e.g., Ciarpaglini v. Saini, 352 F.3d 328, 330 (7th Cir. 2003); Abdul-Akbar v. McKelvie, 239 F.3d 307, 313 (3d Cir.2001) (en banc). Thus a prisoner's assertion that he or she faced danger in the past is insufficient to invoke the exception. Id. Other Circuits also have held that district courts may deny a prisoner leave to proceed pursuant to § 1915(g) when the prisoner's claims of imminent danger are "conclusory or ridiculous," Ciarpaglini, 352 F.3d at 331, or are "'clearly baseless' (i.e. are fantastic or delusional and rise to the level of 'irrational or wholly incredible).'" Gibbs v. Cross, 160 F.3d 962, 967 (3d Cir.1998) (quoting Denton v. Hernandez, 504 U.S. 25, 33 (1992)).
Rittner v. Kinder, 290 F. App'x 796, 797-98 (6th Cir. 2008). In his complaint, Plaintiff states that Defendants "false" reasons to hold him past his "earliest release date" created the "likelihood" of imminent danger. (Compl. at 2-3, docket #1.) Certainly, Plaintiff's vague assertion that he would experience the "likelihood" of imminent danger if he was not released from prison early does not suggest that the danger is real or proximate. (Id.) As a ...