United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER DENYING APPLICATION TO PROCEED
WITHOUT PREPAYMENT OF FEES OR COSTS AND DISMISSING
D. Borman United States District Judge.
prisoner Darryl McGore (“Plaintiff”), currently
confined at the Bellamy Creek Correctional Facility in Ionia,
Michigan, has filed a pro se civil rights complaint (with a
supplement/amendment) pursuant to 42 U.S.C. § 1983, as
well as an application to proceed in forma pauperis. In his
complaint, which is somewhat difficult to read, Plaintiff
raises claims concerning the food service at various prisons,
including the Baraga Correctional Facility, the Alger
Correctional Facility, the Marquette Correctional Facility,
and the Bellamy Creek Correctional Facility, and raises
claims concerning his state criminal proceedings and seeking
a federal grand jury. He names the Trinity Food Group,
several prison wardens, and Detroit city and police officials
as the defendants in this action. He seeks injunctive-type
relief and monetary damages. Having reviewed the matter, the
Court denies the application to proceed without prepayment of
fees or costs and dismisses the complaint (and
supplement/amendment) without prejudice pursuant to 28 U.S.C.
the Prison Litigation Reform Act of 1996
(“PLRA”), a prisoner may be precluded from
proceeding without prepayment of the filing fee in a civil
action under certain circumstances. The statute provides, in
In no event shall a prisoner bring a civil action or appeal a
judgment in a civil action or proceeding under this section,
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). In short, the “three
strikes” provision requires the Court to dismiss a
civil case when a prisoner seeks to proceed without
prepayment of the filing fee if, on three or more previous
occasions, a federal court has dismissed the prisoner's
action because it was frivolous, malicious, or failed to
state a claim upon which relief may be granted. Id.;
see also Dupree v. Palmer, 284 F.3d 1234, 1236 (11th
Cir. 2002) (holding that “the proper procedure is for
the district court to dismiss the complaint without prejudice
when it denies the prisoner leave to proceed in
forma pauperis pursuant to the provisions of
is a prolific litigator in federal court. The Court's
records reveal that he has filed at least three prior civil
actions which have been dismissed as frivolous and/or for
failure to state a claim upon which relief may be granted.
See, e.g., McGore v. Michigan Supreme Ct. Judges,
No. 1:94-cv-00517 (W.D. Mich. Jan. 25, 1995); McGore v.
Nardi, No. 2:93-cv-00137 (W.D. Mich. Aug. 2, 1993);
McGore v. Stine, No. 2:93-cv-00112 (W.D. Mich. July
26, 1993); McGore v. Stine, No. 2:93-cv-00077 (W.D.
Mich. April 30, 1993). Although the dismissals were entered
before the PLRA's enactment, they nevertheless count as
strikes. Wilson v. Yaklich, 148 F.3d 596, 604 (6th
Cir.1998). In addition, Plaintiff has previously been denied
leave to proceed in forma pauperis for having three
strikes. See, e.g., McGore v. United States Supreme Ct.,
et al., No. 2:14-CV-14716 (E.D. Mich. Jan. 8, 2015);
McGore v. Detroit Police Officers, No. 2:11-CV-12994
(E.D. Mich. July 19, 2011); McGore v. Lutz, et al.,
No. 2:09-CV-13031 (E.D. Mich. Aug. 11, 2009); McGore v.
Rich, et al., No. 1:09-cv-00395 (W.D. Mich. July 6,
2009); McGore v. McKee, et al., No. 1:04-cv-00421
(W.D. Mich. Aug. 11, 2004); McGore v. Gundy, et al.,
No. 1:00-cv-00155 (W.D. Mich. March 15, 2000).
Plaintiff is a “three-striker” who cannot proceed
without prepayment of the filing fee unless he can
demonstrate that he is “under imminent danger of
serious physical injury.” 28 U.S.C. § 1915(g). To
fall within the statutory exception to the three strikes
rule, a prisoner must allege that the threat or prison
condition is ‘real and proximate' and the danger of
serious physical injury must exist at the time the complaint
is filed. See Rittner v. Kinder, 290 F. App'x
796, 797-98 (6th Cir. 2008) (citing Ciarpaglini v.
Saini, 352 F.3d 328, 330 (7th Cir. 2003);
Abdul-Akbar v. McKelvie, 239 F.3d 307, 313 (3d Cir.
2001) (en banc)). An assertion of past danger is insufficient
to invoke the exception. Id. Plaintiff does not
allege any facts which indicate that he is under imminent
danger of serious physical injury so as to fall within the
exception to the three strikes rule. Consequently, he is not
allowed to proceed without prepayment of the filing fee for
Based upon the foregoing discussion, the Court concludes that
Plaintiff has filed at least three previous lawsuits which
have been dismissed as frivolous and/or for failure to state
a claim upon which relief may be granted and that he has
failed to establish that he is under imminent danger of
serious physical injury so as to fall within the exception to
the three strikes provision of 28 U.S.C. § 1915(g).
Accordingly, the Court DENIES Plaintiff's application to
proceed without prepayment of fees or costs and DISMISSES his
complaint (with supplement/amendment) pursuant to 28 U.S.C.
§ 1915(g). This dismissal is without prejudice to the
filing of a new complaint with payment of the full filing
the Court concludes that it has properly applied the
“three strikes” provision of 28 U.S.C. §
1915(g) such that an appeal from this order would be
frivolous and ...