United States District Court, W.D. Michigan, Southern Division
DARRYL A. ROBINSON, Plaintiff,
MICHIGAN DEPARTMENT OF CORRECTIONS, Defendant.
OPINION DENYING LEAVE TO PROCEED IN FORMA PAUPERIS -
J. QUIST UNITED STATES DISTRICT JUDGE
Darryl A. Robinson, a prisoner incarcerated at Richard A.
Handlon Correctional Facility (MTU), filed a complaint
pursuant to 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 $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. §
1915(b). The constitutionality of the fee requirements of the
PLRA has been upheld by the Sixth Circuit. Id. at
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 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
Plaintiff's action does not fall under the exception for
an inmate under “imminent danger of serious physical
injury.” 28 U.S.C. § 1915(g). The Sixth Circuit
set forth the following general requirements for a claim of
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 case, Plaintiff sues only the Michigan Department of
Corrections (MDOC), which is immune from suit. See
Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S.
89, 98-101 (1984); Alabama v. Pugh, 438 U.S. 781,
782 (1978); Abick v. Michigan, 803 F.2d 874, 877
(6th Cir. 1986). In addition, Plaintiff's allegations
lack specificity about the nature of the harm he faces.
Plaintiff alleges that a lieutenant and officers came to his
cell and told him that he was going to segregation. He
asserts that he is in imminent danger because he has a SPON
(Special Problem Offender Notice), see Mich.
Dep't of Corr., Policy Directive 03.03.110, related to an
employee at the Earnest C. Brooks Correctional Facility
(LRF). Plaintiff appears to suggest that his transfer to MTU
and placement in segregation put him in imminent danger from
all MDOC officers, because of the SPON, and he seeks transfer
back to LRF and expungement of all misconducts since he
received the notice of intent to classify him to segregation.
Nothing about Plaintiff's allegations suggests that he is
in imminent danger of serious physical injury. His
allegations of imminent danger are wholly speculative, and he
utterly fails to indicate what serious physical injury he is
at risk of incurring.
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, ...