United States District Court, W.D. Michigan, Southern Division
OPINION DENYING LEAVE TO PROCEED IN FORMA PAUPERIS -
J. Jonker Chief United States District Judge
a civil rights action brought by a state prisoner under 42
U.S.C. § 1983.Plaintiff is presently incarcerated with
the Michigan Department of Corrections (MDOC) at the Earnest
C. Brooks Correctional Facility (LRF) in Muskegon Heights,
Michigan. 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. This fee must be paid
within twenty-eight (28) days of this opinion and
accompanying order. If Plaintiff fails to pay the fee, the
Court will order that this case be dismissed without
prejudice. Even if the case is dismissed, Plaintiff must pay
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 created 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.
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 three of Plaintiff's lawsuits, the Court
entered dismissals on the grounds that the cases were
frivolous, malicious, and/or failed to state a claim. See
Johnson v. Quist, No. 2:12-cv-11907 (E.D. Mich. Jul. 10,
2012); Johnson v. Kuehne, No. 2:12-cv-12878 (E.D.
Mich. Jul. 31, 2012); and Johnson v. Harrison, No.
2:12-cv-12543 (E.D. Mich. Aug. 2, 2012). Plaintiff has been
denied leave to proceed in forma pauperis because he
has accumulated three strikes on at least three occasions:
Johnson v. Hulet, No. 1:13-cv-837 (W.D. Mich. Aug.
15, 2013); Johnson v. Kinder, No. 2:16-cv-12698
(E.D. Mich. Aug. 23, 2016); and Johnson v. Mark,
2:17-cv-10232 (E.D. Mich. Jan. 27, 2017).
is clearly aware of the limit his three strikes place on his
ability to proceed in forma pauperis. He repeatedly
parrots the phrase “imminent danger of serious physical
injury, ” in his complaint. Plaintiff's
allegations, however, are not sufficient to fall within the
“imminent danger” exception to the three-strikes
rule. 28 U.S.C. § 1915(g). 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.”).
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.
heart of Plaintiff's complaint is his allegation that
Defendant LRF librarian R. Miller has refused to make
photocopies of Plaintiff's state habeas corpus pleadings
at the direction of MDOC Litigation Department Head Defendant
Melody Wallace in violation of Plaintiff's First
Amendment right to access the courts. Defendant LRF Deputy
Warden Smith and Defendant MDOC Grievance Manager Richard D.
Russell are sued for denying Plaintiff's grievance
regarding the photocopy refusal. The photocopy denial,
Plaintiff contends, has caused him “panic attacks
leading to heart palpitations, chest pains, labored
breathing, [choking] sensations and paralysis . . . .”
(Compl., ECF No. 1, PageID.5.) Thus, Plaintiff argues the
photocopy denial has placed him in imminent danger of serious
physical injury. The Court finds Plaintiff's allegations
of serious physical harm from the alleged denial of his First
Amendment rights wholly incredible.
§ 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 does not pay the filing fee
within the 28-day period, this ...