United States District Court, Western District of Michigan, Southern Division
DARRYL A. ROBINSON, Plaintiff,
THOMAS L. RIEGER, Defendants.
OPINION DENYING LEAVE TO PROCEED IN FORMA PAUPERIS - THREE STRIKES
ROBERT J. JONKER, UNITED STATES DISTRICT JUDGE
Plaintiff Darryl A. Robinson has filed a complaint pursuant to 42 U.S.C. § 1983. He currently is housed at the Woodland Center Correctional Facility, though the actions about which he complains also occurred while he was housed at the Baraga Maximum Correctional Facility and the Richard A. Handlon Correctional Facility. 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 $400.00 civil action filing fee applicable to those not permitted to proceed in forma pauperis 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 $400.00 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 Pointer v. Wilkinson, 502 F.3d 369, 377 (6th Cir. 2007) (citing Wilson, 148 F.3d at 604-06); 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, having filed over sixty civil actions in this Court alone. The Court has dismissed more than three of Plaintiff’s lawsuits on grounds that they were frivolous, malicious, or failed to state a claim. See Robinson v. Lesatz et al., No. 2:05-cv-217 (W.D. Mich. Nov. 7, 2005); Robinson v. Luoma, No. 2:05-cv-218 (W.D. Mich. Nov. 7, 2005); Robinson v. Kutchie et al., No. 2:05-cv-211 (W.D. Mich. Oct. 28, 2005); Robinson v. Snow et al., No. 2:05-cv-212 (W.D. Mich. Oct. 28, 2005); Robinson v. Etelamaki et al., No. 2:05-cv-200 (W.D. Mich. Oct. 4, 2005); Robinson v. Caruso et al., No. 2:05-cv-191 (W.D. Mich. Sept. 21, 2005); Robinson v. Meni et al., No. 2:05-cv-192 (W.D. Mich. Sept. 19, 2005); and Robinson v. Etelamaki, No. 2:05-cv-194 (W.D. Mich. Sept. 19, 2005). In addition, Plaintiff has been denied leave to proceed in forma pauperis under the three-strikes rule in more than thirty previous actions filed in this Court.
Moreover, Plaintiff’s allegations do not satisfy the imminent-danger exception to the three-strikes rule of 28 U.S.C. § 1915(g). Plaintiff contends that he is in imminent danger because he is “a free man . . . and has “been free since my lawyer committed a tort fraud upon the court.” (Compl., docket #1, Page ID#3.) He further sweepingly claims that, because he is locked up, he can’t feed himself, clothe himself, or practice his religion. Plaintiff also alleges that he is “being forced to take psychotropic medications though I’ve explained to Dana Butler theres [sic] nothing wrong with me. If I don’t [csic] take these medication I will be subjected to injection of HplDog and cojitin . . . .” (Id.)
Congress did not define “imminent danger” in the PLRA, but the Sixth Circuit has recognized the definition 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). . . . 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). Plaintiff’s assertion that he is in imminent danger is wholly conclusory. See Ciarpaglini, 352 F.3d at 331. It is not supported by any facts suggesting that Plaintiff is at risk of harm, let alone a “real and proximate” danger of “serious physical injury.” Id. at 330; 28 U.S.C. § 1915(g).
Moreover, Plaintiff’s own allegations and attachments indicate that he is not being subjected to involuntary medication without due process. First, Plaintiff acknowledges in his complaint that he has “told these people [he] started off hearing 3 female voices . . . .” (Compl, Page ID#3.) In addition, Plaintiff attaches documents demonstrating that he received a hearing with respect to his objection to treatment and that he has appealed that decision. (See Attach. to Compl., docket ##1-1, Page ID##5-16 (notice of hearing on April 16, 2015; March 15, 2015 comprehensive psychological evaluation report documenting schizophrenia; April 13, 2015 physician’s certificate of mental illness; and Plaintiff’s notice of appeal from the April 16, 2015 hearing committee decision).) From the attachments to his complaint, it is apparent that Plaintiff has received and is receiving all of the process to which he is entitled.
In light of the foregoing, § 1915(g) prohibits Plaintiff from proceeding in forma pauperis in this action. Plaintiff has twenty-eight (28) days from the date of entry of this order to pay the entire civil action filing fee, which is $400.00. When Plaintiff pays his filing fee, the Court will screen his complaint as required by 28 U.S.C. § 1915A and 42 U.S.C. § 1997e(c). If Plaintiff fails to pay the filing fee within the 28-day period, his ...