United States District Court, W.D. Michigan, Southern Division
OPINION DENYING LEAVE TO PROCEED IN FORMA PAUPERIS -
J. QUIST UNITED STATES DISTRICT JUDGE.
a civil rights action brought by a state prisoner under 42
U.S.C. § 1983. The Court mistakenly granted Plaintiff
leave to proceed in forma pauperis on May 24, 2018.
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.
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 more than 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
Williams v. Caruso et al., 2:08-cv-36 (W.D. Mich. Aug.
12, 2008); Williams v. Mumma et al., 2:08-cv-43
(W.D. Mich. June 23, 2008); Williams v. Winnicki et
al., 2:08-cv-69 (W.D. Mich. June 19, 2008). Moreover,
Plaintiff's allegations do not fall within the
“imminent danger” exception to the three-strikes
rule. 28 U.S.C. § 1915(g).
Sixth Circuit set forth the following general requirements
for a claim of imminent danger:
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.”).
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.
support of his assertion of imminent danger, Plaintiff
alleges that he filed “sexual assault” grievances
against two corrections officers, and when he requested
grievances forms to file additional grievances, another
officer told him that if he keeps writing grievances,
“you're going to segregation where we're going
to whop your ass.” (Am. Compl., ECF No. 4, PageID.63.)
assertion that he filed grievances about sexual assault and
that an officer verbally threatened to “whop” him
is not sufficient to establish that ...