United States District Court, W.D. Michigan, Southern Division
OPINION DENYING LEAVE TO PROCEED IN FORMA PAUPERIS -
L. Maloney, United States District Judge.
a civil rights action brought by a state prisoner under 42
U.S.C. § 1983. Plaintiff is presently incarcerated at
the Baraga Correctional Facility (AMF) in Baraga, Michigan.
Plaintiff seeks leave to proceed in forma pauperis.
(ECF No. 2). However, 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 deny Plaintiff's motion for leave to
proceed in forma pauperis and 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.
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 many more than three of Plaintiff's
lawsuits, the Court entered dismissals on the grounds that
the cases were frivolous, malicious or failed to state a
claim. See McGore v. Wrigglesworth et al., No.
5:96-cv-197 (W.D. Mich. Jan 8, 1997); McGore v. Mich.
Sup. Ct. Judges, No. 1:94-cv-517 (W.D. Mich. Jan. 25,
1995); McGore v. Nardi et al., No. 2:93-cv-137 (W.D.
Mich. Aug. 2, 1993); McGore v. Stine et al., No.
2:93-cv-112 (W.D. Mich. July 26, 1993); McGore v. Stine
et al., No. 2:93-cv-77 (W.D. Mich. Apr. 30, 1993).
Although many of the dismissals were entered before enactment
of the PLRA on April 26, 1996, the dismissals nevertheless
count as strikes. See Wilson, 148 F.3d at 604. In
addition, Plaintiff previously has been denied leave to
proceed in forma pauperis on numerous occasions for
having three strikes.
notwithstanding his invocation of the words “imminent
danger, ” Plaintiff's 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. Instead, his
allegations relate to denials of medical care by personnel at
the Bellamy Creek Correctional Facility (ICF) in Ionia,
Michigan, the facility in which Plaintiff was incarcerated
before his transfer to AMF.
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 Fed.Appx. 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 Fed.Appx. 488, 492 (6th Cir.
2012)] (“Allegations of past dangers are insufficient
to invoke the exception.”); Percival v. Gerth,
443 Fed.Appx. 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 Fed.Appx. at 798 (internal quotation
marks and citations omitted); see also Taylor, 508
Fed.Appx. 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). Plaintiff's claims relate to
harms allegedly caused months ago and, because he is no
longer under the care of the persons who were allegedly
deliberately indifferent to his needs, utterly fail to
demonstrate that Plaintiff faces an imminent danger of future
serious physical injury.
§ 1915(g) prohibits Plaintiff from proceeding in
forma pauperis in this action. As a consequence, the
Court will deny pauper status to Plaintiff. 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 ...