United States District Court, W.D. Michigan, Northern Division
OPINION DENYING LEAVE TO PROCEED IN FORMA PAUPERIS -
T. NEFF UNITED STATES DISTRICT JUDGE
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).
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
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.
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).
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.
§ 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 ...