United States District Court, W.D. Michigan, Northern Division
OPINION DENYING LEAVE TO PROCEED IN FORMA PAUPERIS -
J. QUIST UNITED STATES DISTRICT JUDGE
Juvionne Littlejohn, a prisoner incarcerated at Baraga
Maximum Correctional Facility, filed a complaint pursuant to
42 U.S.C. § 1983. Plaintiff was initially granted leave
to proceed in forma pauperis. Because Plaintiff has
filed at least three lawsuits that were dismissed as
frivolous or for failure to state a claim, he is barred from
proceeding in forma pauperis under 28 U.S.C. §
1915(g). The Court therefore will vacate the earlier order
allowing Plaintiff to proceed in forma pauperis and
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).
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. §
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).
has been an active litigant in the federal courts in
Michigan, having filed approximately 40 cases in this
district and more than a dozen other cases in the Eastern
District of Michigan. In more than three of Plaintiff's
lawsuits, the Court entered dismissals on the grounds of
failure to state a claim. See Littlejohn v. Green et
al., No. 2:07-cv-213 (W.D. Mich. Jan. 16, 2008);
Littlejohn v. McGinnis, No. 2:98-cv-243 (W.D. Mich.
Apr. 5, 1999); Littlejohn v. Alexander, No.
2:91-cv-244 (W.D. Mich. Nov. 27, 1991); Littlejohn v.
Houseworth, No. 2:91-cv-255 (W.D. Mich. Mar. 25, 1992).
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.
Plaintiff also has been denied leave to proceed in forma
pauperis on the basis of the three-strikes rule on at
least four prior occasions. See Littlejohn v. Richardson
et al., No. 1:13-cv-763 (W.D. Mich. Jul. 30, 2013);
Littlejohn v. Caruso et al., No. 2:10-cv-316 (W.D.
Mich. May 1, 2011); Littlejohn v. Dube, Not.
2:10-cv-42 (W.D. Mich. Sept. 3, 2010); Littlejohn v.
Tribley et al., No. 2:10-cv-26 (W.D. Mich. Aug. 26,
Plaintiff's allegations do not fall within the exception
to the three-strikes rule because he does not allege facts
establishing that he is under imminent danger of serious
physical injury. 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 “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 (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). The Sixth Circuit set forth the following general
requirements for a claim of imminent danger:
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.”).
Vandiver v. Prison Health Services, Inc., 727 F.3d
580, 585 (6th Cir. 2013). A prisoner's claim of imminent
danger is subject to the same notice pleading requirement as
that which 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.
instant complaint, Plaintiff alleges that, at some time in
the past, he was attacked by unknown gang members. He asserts
that Defendants have continued to place him at Marquette
Branch Prison (MBP) and Baraga Maximum Correctional Facility
(AMF), despite the fact that many gang members are housed at
those facilities. Plaintiff presently is incarcerated in