The opinion of the court was delivered by: Honorable Robert J. Jonker
OPINION DENYING LEAVE TO PROCEEDIN FORMAPAUPERIS - THREE STRIKES
Plaintiff Richard James Simpson, a prisoner incarcerated at Macomb Correctional Facility, filed a complaint under 42 U.S.C. § 1983. Plaintiff seeks leave to proceed in forma pauperis. Because Plaintiff has filed at least three lawsuits that were dismissed as frivolous, malicious or for failure to state a claim, he is barred from proceeding in forma pauperis under 28 U.S.C. § 1915(g). The Court will order Plaintiff to pay the $350.00 civil action filing fee within twenty-eight (28) days of this opinion and accompanying order, and 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 more than three of Plaintiff's lawsuits, the Court entered dismissals on the grounds that they were frivolous or failed to state a claim. See Simpson v. Caruso et al., No. 1:09-cv-245 (W.D. Mich. Apr. 14, 2009); Simpson v. Brown et al., No. 2:89-cv-72373 (E.D. Mich. June 7, 1990); Simpson v. Flint Journal et al., No. 2:89-cv-73057 (E.D. Mich. Nov. 15, 1989). Although two of the dismissals were entered before enactment of the PLRA on April 26, 1996, the dismissals nevertheless count as strikes. See Wilson, 148 F.3d at 604. In addition, in numerous cases, Plaintiff previously was denied leave to proceed in forma pauperis in this Court because he has three strikes. See Simpson v. Caruso et al., No. 1:10-cv-20 (W.D. Mich. Feb. 13, 2010); Simpson v. Prison Health Servs., Inc. et al., No. 1:10-cv-50 (W.D. Mich. Jan. 27, 2010); Simpson v. Caruso et al., No. 1:09-cv-1167 (W.D. Mich. Jan. 27, 2010); Simpson v. Pramstaller et al., No. 1:09-cv-1168 (W.D. Mich. Jan. 11, 2010); Simpson v. Correctional Medical Servs. Inc. et al., No. 1:09-cv-1166 (W.D. Mich. Jan. 11, 2010); Simpson v. Prison Health Servs. et al., No. 1:09-cv-1064 (W.D. Mich. Jan. 11, 2010); Simpson v. Prison Health Servs., Inc. et al., No. 1:09-cv-1048 (W.D. Mich. Jan. 11, 2010); Simpson v. Prison Health Servs., Inc. et al., No. 1:09-cv-824 (W.D. Mich. Sept. 28, 2009); Simpson v. Correctional Medical Servs., Inc. et al, No. 1:09-cv-926 (W.D. Mich. Sept. 10, 2009); Simpson v. Correctional Medical Servs., Inc. et al., No. 1:09-cv-809 (W.D. Mich. Sept. 10, 2009). In fact, the Court previously has denied pauper status in an action that raised substantively identical allegations to those raised in the instant case. See Simpson v. Pramstaller et al., No. 1:09-cv-1168 (W.D. Mich. Jan. 11, 2010).
Plaintiff makes several arguments why he should be allowed to proceed in forma pauperis under the imminent danger exception of 1915(g). First, he argues that Defendants have failed to treat his skin condition, folliculitis, with the medications prescribed by an MDOC doctor in 1991 and that the substitute treatments they have offered are inadequate. He contends that Defendants' failure to adequately treat the condition constitutes deliberate indifference to his serious medical needs. Plaintiff suggests that, because the alleged conduct clearly violated the Eighth Amendment, he should not be barred from recovering for his injuries.
As the Court previously concluded, however, the statute clearly bars granting pauper status -- even on a complaint raising meritorious claims -- 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 constituted a 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).
As the Court fully discussed in its decision denying pauper status in Simpson v. Pramstaller et al., No. 1:09-cv-1168 (W.D. Mich.) (Op. Jan. 10, 2010), Plaintiff has failed to allege a sufficiently serious injury. Plaintiff's alleged serious physical injury is a skin rash that, 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.*fn1 It is apparent from Plaintiff's complaint and attachments that Plaintiff has been seen regularly by medical personnel and has been prescribed a variety of skin treatments. While he may not be entirely satisfied with the efficacy of the treatments, his skin condition has not gone untreated and 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 skin 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 ...