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Theriot v. Jovial

United States District Court, W.D. Michigan, Northern Division

July 5, 2018

KEVIN DWAYNE THERIOT, Plaintiff,
v.
UNKNOWN JOVIAL et al., Defendants.

          OPINION DENYING LEAVE TO PROCEED IN FORMA PAUPERIS - THREE STRIKES

          JANET T. NEFF UNITED STATES DISTRICT JUDGE

         This is a civil rights action under 42 U.S.C. § 1983, brought by a state prisoner, Kevin Dwayne Theriot, purportedly on behalf of himself and two other prisoners. Plaintiff Theriot, however, is the sole signatory to the complaint and attachments. 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).

         Discussion

         The 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.

         In 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).

         Plaintiff 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 of frivolous, malicious, and for failure to state a claim. See Theriot v. Woods, et al., No. 2:08-cv-300 (W.D. Mich. Feb. 26, 2009); Theriot v. Malhowski, et al., No. 2:09-cv-154 (W.D. Mich. Aug. 7, 2009); Theriot v. Bates, et al., No. 2:12-cv-200 (W.D. Mich. Jun. 29, 2012). In addition, Plaintiff was denied leave to proceed in forma pauperis pursuant to § 1915(g) in Theriot v. Woods et al., No. 2:16-cv-234 (W.D. Mich. Dec. 5, 2016), and Theriot v. Massgolia, et al., No. 2:14-cv-203 (W.D. Mich. Jan. 27, 2015).

         Moreover, 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, Plaintiff complains about being placed on food slot restriction on March 22, 2018, and denials of some meals for a few days. In order to allege sufficiently imminent danger, the Sixth Circuit has 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); see also Vandiver v. Prison Health Servs., Inc., 727 F.3d 580, 585 (6th Cir. 2013). A prisoner's assertion that he or she faced danger in the past is insufficient to invoke the exception. Vandiver, 727 F.3d at 585 (citing Rittner, 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.”). Plaintiff's allegations fail to demonstrate that he faces any future physical danger, much less that such danger is both serious and imminent.

         Therefore, § 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 ...


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