United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER SCREENING AND DISMISSING
J. MICHELSON U.S. DISTRICT JUDGE
Cannon filed this lawsuit against the Michigan Parole Board
and a host of other individuals alleging, among other things,
that his parole eligibility date should have been in June
2017 instead of December 2017.
not the first lawsuit that Cannon has filed while he has been
in prison. And that is relevant because with one exception, a
prisoner cannot file suit without paying the filing fee if he
“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.” 28 U.S.C. §
has not paid the filing fee.
three of Cannon's federal lawsuits were dismissed because
they were frivolous, malicious, or failed to state a claim
upon which relief may be granted: (1) Cannon-Bey v.
Richards, et al., No. 2:91-cv-00248 (W.D. Mich. Dec. 19,
1991) (order dismissing case as “frivolous and without
merit”), (2) Cannon-Bey v. Osier, et al., No.
2:99-cv-00165 (W.D. Mich. Dec. 23, 1999) (order finding that
suit “is frivolous and fails to state a claim upon
which relief can be granted”), and (3) Mease et
al., v. Curtis et al., No. 1:00-cv-00849, slip op. at 1,
5 (W.D. Mich. Nov. 29, 2000).
things about those citations might suggest that the
three-strikes rule does not apply. The first is that the 1991
case was dismissed before the effective date of the PLRA.
Even so, it still counts as a strike. Wilson v.
Yaklich, 148 F.3d 596, 604 (6th Cir. 1998); see also
Swenson v. Pramstaller, 169 Fed.Appx. 449, 450 (6th Cir.
2006). The other is that the 2000 case involved multiple
plaintiffs, only one of which was Cannon. But “[w]hen
multiple prisoners are joined under Rule 20, strikes may
still be incurred for an individual prisoner's portion of
the case if all of that prisoner's claims are dismissed
for failure to state a claim, regardless of the outcome of
the other litigants' claims.” Taylor v. First
Med. Mgmt., 508 Fed.Appx. 488, 493-94 (6th Cir. 2012).
And the Court has (through an archive request) reviewed the
opinion in Mease and it is clear that Cannon's
claim was dismissed for failing to state a claim. See
Mease v. Curtis, No. 1:00-cv-00849, slip op. at 1, 5
(W.D. Mich. Nov. 29, 2000) (finding, save for one plaintiff,
that allegations of strip searches were “too conclusory
to state a claim”).
Cannon has three strikes. But, as noted, there is one
exception to the rule: “the prisoner is under imminent
danger of serious physical injury.” 28 U.S.C. §
Cannon alleged in his complaint that he had no prior suits
that counted as a strike (R. 1, PID 12), he did not attempt
to plead this exception. But the Court has reviewed
Cannon's complaint and there is some indication of mental
or emotional distress. He says that the misconduct by the
Parole Board and by other defendants “ha[s] cause[d]
plaintiff to seek mental treatment due to plaintiff having
trust issue[s] to the point plaintiff do[es] not trust
anybody without asking what's in it for them when someone
offer[s] to help plaintiff[.]” (R. 1, PID 33.) And in a
health-care request form attached to his complaint, Cannon
told prison staff, “I'm having sleepless nights,
short-temper, sweating while trying to sleep, feel like
I'm about to explode[;] I [am] having breathing trouble
while just sitting down and it feels like someone is out to
get me.” (R. 1, PID 60.) Two weeks later, Cannon filed
another health-care request: “I'm still having
anxiety symptom[s] . . . . I had [to] take cold water and
splash it on my face and use a cold face cloth and hold it
over my to [sic] catch my breath.” (R. 1, PID
allegations and health-care requests do not establish
“imminent danger of serious physical injury.”
Focusing just on the mental- and emotional-health symptoms,
it is doubtful that they amount to “physical
injury.” Sanders v. Melvin, 873 F.3d 957, 959
(7th Cir. 2017) (“Physical problems can cause
psychological ones, and the reverse, but [§ 1915(g)]
supposes that it is possible to distinguish them.”). As
for physical manifestations, the Court is not convinced that
“sleepless nights” and “breathing
trouble” are “serious . . . injur[ies].”
Moreover, the healthcare requests were filed in May and June
2017 and Cannon's lawsuit was filed in December 2017.
Things may have changed in six months and “the danger
of serious physical injury must exist at the time the
complaint is filed.” See Vandiver v. Prison Health
Servs., Inc., 727 F.3d 580, 585 (6th Cir. 2013)
(internal quotation marks omitted).
Cannon has filed three suits before this one that were
dismissed on the grounds that they were frivolous, malicious,
or failed to state a claim upon which relief may be granted,
and because Cannon has not adequately pled the
imminent-danger exception to the three-strikes rule,