United States District Court, W.D. Michigan, Northern 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. 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 that the cases were
frivolous, malicious, and/or failed 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. Massgolia, et al., No. 2:14-cv-203 (W.D. Mich.
Jan. 27, 2015).
Plaintiff's allegations do not fall within the
“imminent danger” exception to the three-strikes
rule. 28 U.S.C. § 1915(g). The Sixth Circuit set forth
the following general requirements for a claim of imminent
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). 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. Id.
alleges that on May 16, 2018, he was told that he was going
to be transferred to another prison. On May 17, 2018,
Defendants Marty and VanWagner escorted Plaintiff to the
shower for a strip search prior to the transfer. As Plaintiff
was handing his clothes to Defendant VanWagner, Defendant
Marty pulled out his taser and shot Plaintiff. Defendant
Marty said, “You think you're smart, huh
nigger?” Plaintiff was then taken back to his cell as
if nothing had happened.
noted above, allegations that a prisoner has faced imminent
danger in the past are insufficient to trigger the exception
under § 1915(g). Ashley v. Dilworth, 147 F.3d
715, 717 (8th Cir. 1998); accord Banos v.
O'Guin, 144 F.3d 883, 884 (5th Cir. 1998)
(“The plain language of the statute leads us to
conclude that a prisoner with three strikes is entitled to
proceed with his action or appeal only if he is in imminent
danger at the time that he seeks to file his suit in district
court or seeks to proceed with his appeal or files a motion
to proceed IFP.”). See also Luedtke v.
Bertrand, 32 F.Supp.2d 1074, 1077 (E.D. Wis. 1999)
(“[T]he exception for claims concerning an
‘imminent danger of serious physical injury' cannot
be triggered solely by complaints ...