United States District Court, W.D. Michigan, Southern Division
OPINION DENYING LEAVE TO PROCEED IN FORMA PAUPERIS -
L. Maloney, United States District Judge
Garry Lee Hale, a prisoner incarcerated at Carson City
Correctional Facility, 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 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).
has been an active litigant in the federal courts in
Michigan. In at least three of Plaintiff's lawsuits, the
Court entered dismissals on the grounds that they were
frivolous or failed to state a claim. See Hale v.
Schaefer , No. 4:98-cv-148 (W.D. Mich. Nov. 24, 1998)
(failure to state a claim); Hale v. McGinnis , No.
2:96-cv-73193 (E.D. Mich. Aug. 30, 1996) (frivolous);
Hale v. McGinnis , No. 1:96-cv-518 (W.D. Mich. Oct.
24, 1996) (frivolous).
also has been denied leave to proceed in forma
pauperis in at least one other case. See Hale
v. Fowler , No. 1:00-cv-767 (W.D. Mich. Oct. 26,
Plaintiff's allegations do not fall within the exception
to the three-strikes rule. 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.”).
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.
Plaintiff complains that, on September 9, 2016, Defendant
Gago performed cataract surgery on Plaintiff's left eye.
According to the medical reports attached to the complaint,
which Plaintiff incorporates by reference (see
Compl., ECF No. 1, PageID.4), Dr. Gago also placed an I-stent
to treat Plaintiff's glaucoma. (Attach. to Compl., ECF
No. 1-1, PageID.24, 31.) Plaintiff believes that the surgery
and I-stent caused further impairment to his left eye. He
states that he has blurry and yellowish vision, and
continuing pain in his eye. He also complains that Defendant
Optometrist Kolk, who saw him on October 10, 2016, has
provided him an improper vision prescription and that his
glasses do not work as well as he believes they should.
Defendant Gago examined him again on December 9, 2016,
indicating that his vision was better than before surgery,
but he provided Plaintiff with additional eyedrops.
(Id., PageID.24-26.) In addition, according to the
attachments to the complaint, Optometrist Linsley saw
Plaintiff on February 28, 2017, and Dr. Kolk also saw
Plaintiff again on March 21, 2017, providing new prescription
lenses, despite only a minor change to the
prescription. (Id., PageID.31-38.) In addition,
makes a series of conclusory allegations against Defendant
Nurse Stevens, alleging that she engaged in an intentional
pattern of medical abuse and racial discrimination. His only
factual allegation is that Defendant Stevens allegedly told
the property room to confiscate Plaintiff's personally
purchased, tinted bifocals, in exchange for non-tinted
bifocals from the facility.
Plaintiff's allegations concern past actions. By his own
admissions and attachments, Plaintiff has been seen and
treated regularly for his eye ailments. Absolutely nothing
suggests that he is at risk, much less imminent ...