United States District Court, W.D. Michigan, Northern Division
GENE T. FAVORS #159735, Plaintiff,
DAVID M. LEACH, et al., Defendants.
ROBERT HOLMES BELL, JUDGE
REPORT AND RECOMMENDATION
TIMOTHY P. GREELEY, UNITED STATES MAGISTRATE JUDGE
Gene T. Favors, filed this pro se civil rights
action pursuant to 42 U.S.C. § 1983. The court initially
granted Plaintiff leave to proceed in forma pauperis
in compliance with 28 U.S.C. § 1915(a). (ECF No. 6.)
Defendants have now moved to revoke Plaintiff's in
forma pauperis status pursuant to 28 U.S.C. §
1915(g). (ECF No. 21.) Defendants have also moved to stay the
case management order and pending discovery until their
motion to revoke has been decided. (ECF No. 25.) Plaintiff
has responded. (ECF No. 40.) This matter is now ready for
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.
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).
Vandiver v. Prison Health Services, Inc., 727 F.3d
580 (6th Cir. 2013), the Sixth Circuit set forth the
following general requirements for a claim of imminent
In order to allege sufficiently imminent danger, we have held
that “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.” Rittner
v. Kinder, 290 F. App'x 796, 797 (6th Cir. 2008)
(internal quotation marks omitted). “Thus a
prisoner's assertion that he or she faced danger in the
past is insufficient to invoke the exception.”
Id. at 797-98; see also [Taylor v.
First Med. Mgmt., 508 F. App'x 488, 492 (6th Cir.
2012)] (“Allegations of past dangers are insufficient
to invoke the exception.”); Percival v. Gerth,
443 F. App'x 944, 946 (6th Cir. 2011) (“Assertions
of past danger will not satisfy the ‘imminent
danger' exception.”); cf. [Pointer v.
Wilkinson, 502 F.3d 369, 371 n.1 (6th Cir. 2007)]
(implying that past danger is insufficient for the
In addition to a temporal requirement, we have explained that
the allegations must be sufficient to allow a court to draw
reasonable inferences that the danger exists. To that end,
“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, or are clearly
baseless (i.e. are fantastic or delusional and rise to the
level of irrational or wholly incredible).”
Rittner, 290 F. App'x at 798 (internal quotation
marks and citations omitted); see also Taylor, 508
F. App'x at 492 (“Allegations that are conclusory,
ridiculous, or clearly baseless are also insufficient for
purposes of the imminent-danger exception.”).
Id. at 585. A prisoner's claim of imminent
danger is subject to the same notice pleading requirement
that applies to prisoner complaints. Id.
Consequently, a prisoner must allege facts in the complaint
from which the court could reasonably conclude that the
prisoner was under an existing danger at the time he filed
his complaint, but the prisoner need not affirmatively prove
those allegations. Id.
the undersigned must determine whether Plaintiff has three
strikes. There is no question that Plaintiff has been an
active litigant in the federal courts in Michigan. To support
the fact that Plaintiff has three strikes, Defendants cite
four cases: Favors v. Bos, 871 F.2d 1087 (6th Cir.
Mar. 28, 1989) (unpublished) (affirming dismissal as
frivolous); Favors v. Toombs, No. 2:91-cv-74647
(E.D. Mich. Aug. 13, 1992)(dismissing as frivolous);
Favors v. Bell, No. 1:92-cv- 446 (W.D. Mich. Oct.
17, 1994)(dismissing for failure to state a claim);
Favors v. Palmer, No. 2:95-cv-73874 (E.D. Mich. Nov.
27, 1995)(dismissing as frivolous). Defendants attached a
lexis printout of the unpublished Sixth Circuit opinion and
docket report printouts of the district court cases.
Plaintiff argues that the ECF docket sheets were not properly
authenticated because they did not include the actual
opinions that dismissed the cases. This may be true. However,
Plaintiff has also had three cases dismissed in the Eastern
District of Michigan due to already having three strikes.
See Favors v. Thompson, No. 99-cv-10015 (E.D. Mich.
Sept. 27, 1999); Favors v. Garrett, No. 06-cv-13487
(E.D. Mich. Aug. 31, 2006); Favors v. Curling, No.
10-cv-14966 (E.D. Mich. Dec. 27, 2010). Therefore, in the
opinion of the undersigned, Plaintiff has three strikes.
Plaintiff has three strikes, the undersigned must determine
whether Plaintiff meets the imminent danger exception to
proceed in forma pauperis. In his complaint,
Plaintiff alleges that he is in imminent danger of serious
physical injury because he is receiving an “inadequate
diet.” Plaintiff alleges that Defendants denied him
vegan meals that are required by his religion. In addition,
Plaintiff alleges that some of his meals were contaminated
with pork because Defendants did not properly separate pork
from other food. Plaintiff alleges that his inadequate diet
is causing fatigue, depression, a sleeping disorder,
dizziness, weight loss, anxiety, severe hunger pain, and
stomach pain. In his response brief, Plaintiff further
alleges that he is allergic to soy and that he is being
forced to eat undercooked beans and undercooked bean
opinion of the undersigned, Plaintiff's allegations do
not fall within the imminent danger exception to the
three-strikes rule. Plaintiff's allegations that he was
receiving an inadequate diet are conclusory. Plaintiff does
not allege any facts showing what his actual diet entailed at
the time he filed his complaint. Plaintiff simply states that
he was denied vegan meals and that sometimes his meals were
contaminated with pork. These facts do not establish that
Plaintiff was provided with an inadequate diet. In addition,
assuming Plaintiff does not eat his meals that are
“contaminated” with pork, Plaintiff has