United States District Court, W.D. Michigan, Southern Division
JESSIE E. JONES, Plaintiff,
A. HASKE Defendants.
J. QUIST UNITED STATES DISTRICT JUDGE
an action filed by Plaintiff Jessie E. Jones, a prisoner
presently incarcerated at Central Michigan Correctional
Facility (STF) in St. Louis, Michigan. The events of which
Plaintiff complains, however, occurred at the Oaks
Correctional Facility (ECF) in Manistee, Michigan, during the
spring of 2014.
filed this action on or about May 19, 2017. On May 25, 2017,
the Court issued an order granting Plaintiff leave to proceed
in forma pauperis (ECF No. 3). After that order was
issued, the Court learned that Plaintiff has filed several
civil actions in this Court, at least four of which have been
dismissed as frivolous, malicious or for failure to state a
claim. 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 within re Alea, 286 F.3d 378, 380-81 (6th
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 abill of attainder and is expostfacto
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. At the
time Plaintiff filed the instant action, this Court had
dismissed 4 of his lawsuits for failure to state a claim.
See (1) Jones v. Baker, 2:06-cv-279 (W.D.
Mich. Feb. 13, 2007); (2) Jones v. Ollis,
2:08-cv-155 (W.D. Mich. Oct. 16, 2008); (3) Jones v.
Bonevelle, 2:08-cv-233 (W.D. Mich. Oct. 21, 2008); and
(4) Jones v. Yoak, 2:08-cv-255 (W.D. Mich. Dec. 5,
2008). Based on these dismissals, this Court has denied
Plaintiff leave to proceed in forma pauperis in
several cases: (1) Jones v. Canlas, 2:12-cv-33 (W.D.
Mich. Oct. 11, 2012); (2) Jones v. Wolak, No.
2:12-cv-284 (W.D. Mich. Aug. 13, 2012); (3) Jones v. L
'Anse Pharmacy, 2:12-cv-293 (W.D. Mich. Sept. 4,
2012); and (4) Jones v. Napel, No. 2:13-cv-282 (W.D.
Mich. Oct. 4, 2013).
Plaintiffs allegations do not fall within the exception to
the three-strikes rule because he does not allege any facts
establishing that he is under imminent danger of serious
physical injury. 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."); Percivalv. 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.l (6th Cir. 2007)] (implying that past danger
is insufficient for the imminent-danger exception).
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.
the only allegations that implicates any danger to Plaintiff
relates to May of 2014. Plaintiff alleges that during May of
2014 Defendant Haske told other ECF prisoners that Plaintiff
was a prison rat. Plaintiff claims he was thereafter