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Theriot v. Pertu

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

July 17, 2019

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

          OPINION DENYING LEAVE TO PROCEED IN FORMA PAUPERIS - THREE STRIKES

          Paul L. Maloney, United States District Judge.

         This is 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).

         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 that the cases were frivolous, malicious, and/or failed to state a claim. See Theriot v. Woods et al., No. 2:18-cv-193 (W.D. Mich. Nov. 30, 2018); Theriot v. Hill et al., No. 2:18-cv-131 (W.D. Mich. Nov. 7, 2018); Theriot v. Bates et al., No. 2:12-cv-200 (W.D. Mich. June 29, 2012); Theriot v. Malhowski et al., No. 2:09-cv-154 (W.D. Mich. Aug. 7, 2009); Theriot v. Woods et al., No. 2:08-cv-300 (W.D. Mich. Feb. 26, 2009). In addition, Plaintiff was denied leave to proceed in forma pauperis pursuant to § 1915(g) in dozens of cases. Theriot v. Neff et al., No. 2:19-cv-73 (W.D. Mich. May 2, 2019); Therio v. Mayo et al., No. 2:19-cv-59 (W.D. Mich. Mar. 13, 2019); Theriot v. Hoffman et al., No. 2:19-cv-58 (W.D. Mich. Mar. 13, 2019); Theriot v. Lesatz et al., No. 2:19-cv-57 (W.D. Mich. Mar. 13, 2019); Theriot v. Kirchoffer et al., No. 1:19-cv-56 (W.D. Mich. Mar. 13, 2019); Theriot v. Lesatz et al., No. 2:19-cv-55 (W.D. Mich. Mar. 13, 2019); Theriot v. Lesatz et al., No. 2:19-cv-54 (W.D. Mich. Mar. 13, 2019); Theriot v. Marshall et al., No. 2:19-cv-53 (W.D. Mich. Mar. 13, 2019); Theriot v. Beauchamp et al., No. 2:19-cv-28 (W.D. Mich. Mar. 13, 2019); Theriot v. Huhta et al., No. 2:19-cv-27 (W.D. Mich. Mar. 13, 2019); Theriot v. Pertu et al., No. 2:19-cv-26 (W.D. Mich. Mar. 13, 2019); Theriot v. Niemi et al., No. 2:19-cv-25 (W.D. Mich. Mar. 13, 2019); Theriot v. Lesatz et al., No. 2:19-cv-24 (W.D. Mich. Mar. 13, 2019); Theriot v. Lesatz et al., No. 2:19-cv-21 (W.D. Mich. Mar. 13, 2019); Theriot v. Marshall et al., No. 2:19-cv-20 (W.D. Mich. Mar. 13, 2019); Theriot v. Lesatz, No. 2:19-cv-19 (W.D. Mich. Mar. 7, 2019); Theriot v. Huhta, No. 2:19-cv-18 (W.D. Mich. Mar. 13, 2019); Theriot v. Huhta et al., No. 2:19-cv-17 (W.D. Mich. Mar. 13, 2019); Theriot v. Hill et al., No. 2:19-cv-16 (W.D. Mich. Mar. 13, 2019); Theriot v. Lesatz et al., No. 2:19-cv-15 (W.D. Mich. Mar. 13, 2019); Theriot v. Lesatz et al., No. 2:19-cv-14 (W.D. Mich. Mar. 13, 2019); Theriot v. Cummings et al., No. 2:18-cv-192 (W.D. Mich. Dec. 12, 2018); Theriot v. Lesatz et al., No. 2:18-cv-191 (W.D. Mich. Dec. 12, 2018); Theriot v. Antilla et al., No. 2:18-cv-190 (W.D. Mich. Nov. 7, 2018); Theriot v. Lesatz et al., No. 2:18-cv-189 (W.D. Mich. Nov. 16, 2018); Theriot v. Parrish et al., No. 2:18-cv-188 (W.D. Mich. Nov. 15, 2018); Theriot v. Mukka et al., No. 2:18-cv-187 (W.D. Mich. Nov. 29, 2018); Theriot v. Lancott et al., No. 2:18-cv-165 (W.D. Mich. Nov. 2, 2018); Theriot v. Taho et al., No. 2:18-cv-164 (W.D. Mich. Nov. 1, 2018); Theriot v. Waltenen et al., No. 2:18-cv-163 (W.D. Mich. Oct. 17, 2018); Theriot v. Van Acker et al., No. 2:18-cv-162 (W.D. Mich. Nov. 2, 2018); Theriot v. Mahi et al., No. 2:18-cv-161 (W.D. Mich. Nov. 2, 2018); Theriot v. Larson et al., No. 2:18-cv-160 (W.D. Mich. Oct. 18, 2018); Theriot v. Tervo et al., No. 2:18-cv-130 (W.D. Mich. Oct. 16, 2018); Theriot v. Hill et al., No. 2:18-cv-129 (W.D. Mich. Oct. 17, 2018); Theriot v. Waltenen et al., No. 2:18-cv-95 (W.D. Mich. Oct. 17, 2018); Theriot v. Heinonen et al., No. 2:18-cv-94 (W.D. Mich. Oct. 17, 2018); Theriot v. Jovial et al., No. 2:18-cv-93 (W.D. Mich. July 5, 2018); Theriot v. Tongreva et al., No. 2:18-cv-72 (W.D. Mich. July 12, 2018); Theriot v. Cordonado et al., No. 2:18-cv-71 (W.D. Mich. July 5, 2018); Theriot v. Woods et al., No. 2:16-cv-234 (W.D. Mich. Jan. 25, 2017); Theriot v. Massgolia et al., No. 2:14-cv-203 (W.D. Mich. Jan. 27, 2015).

         In his one-paragraph complaint in this case, Plaintiff alleges that, on May 1, 2019, Defendant Pertu approached his cell and said that he and a few friends were going to get Plaintiff back for filing complaints. Defendant Pertu pointed a tazer at Plaintiff and ordered him to lie face down on the floor. Defendant Pertu then performed a search during which he stuck a finger in Plaintiff's rectum. Defendants Sacked, Decelliar, Cordonado, and Mayo were present and laughed and mocked Plaintiff. Plaintiff states that Defendants then took turns digitally penetrating his anus.

         The 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 imminent-danger exception).
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.

         Prior to May 2018, Plaintiff filed only eight lawsuits over a period of ten years. Since May 2018, however, he has filed 50 additional actions in this district. He filed three cases on May 22, 2018. See Theriot v. Tonequa et al., No. 2:18-cv-72; Theriot v. Cordonado et al., 2:18-cv-71; Theriot v. Lee et al., No. 2:18-cv-70. He filed four more actions on June 25-26, 2018. See Theriot v. Waltenen et al., No. 2:18-cv-95; Theriot v. Heinonen et al., No. 2:18-cv-94; Theriot v. Jovial et al., No. 2:18-cv-93; Theriot v. Woods et al., No. 2:18-cv-92. On August 3, 2018, Plaintiff filed three more cases. See Theriot v. Hill et al., No. 2:18-cv-131; Theriot v. Tervo et al., No. 2:18-cv-130; Theriot v. Hill et al., No. 2:18-cv-129. Plaintiff filed another eight cases on September 25, 2018. See Theriot v. Pollard et al., No. 2:18-cv-167; Theriot v. Lautentres et al., No. 2:18-cv-166; Theriot v. Lancott et al., No. 2:18-cv-165; Theriot v. Taho et al., No. 2:18-cv-164; Theriot v. Waltenen et al., No. 2:18-cv-163; Theriot v. Van Acker et al., No. 2:18-cv-162; Theriot v. Maki et al., No. 2:18-cv-161; Theriot v. Larson et al., No. 2:18-cv-160. Only a month later, on October 29, 2018, Plaintiff filed seven additional lawsuits. See Theriot v. Woods et al., No. 2:18-cv-193; Theriot v. Cummings et al., No. 2:18-cv-192; Theriot v. Lesatz et al., No. 2:18-cv-191; Theriot v. Antilla et al., No. 2:18-cv-190; Theriot v. Lesatz et al., No. 2:18-cv-189; Theriot v. Parrish et al., No. 2:18-cv-188; Theriot v. Mukka et al., No. 2:18-cv-187. On January 25, 2019, Plaintiff filed 13 more actions. See Theriot v. Beauchamp et al., No. 2:19-cv-28; Theriot v. Huhta et al., No. 2:19-cv-27; Theriot v. Pertu et al., No. 2:19-cv-26; Theriot v. Niemi et al., No. 2:19-cv-25; Theriot v. Lesatz et al., No. 2:19-cv-24; Theriot v. Huhta et al., No. 2:19-cv-21; Theriot v. Marshall et al., No. 2:19-cv-20; Theriot v. Lesatz, No. 2:19-cv-19; Theriot v. Huhta et al., No. 2:19-cv-18; Theriot v. Huhta et al., No. 2:19-cv-17; Theriot v. Hill et al., No. 2:19-cv-16; Theriot v. Lesatz et al., No. 2:19-cv-15; Theriot v. Lesatz et al., No. 2:19-cv-14. On February 27, 2019, Plaintiff file seven more actions. Theriot v. Mayo et al., No. ...


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