United States District Court, W.D. Michigan, Northern Division
OPINION DENYING LEAVE TO PROCEED IN FORMA PAUPERIS -
THREE STRIKES
Janet
T. Neff United States District Judge.
This is
a civil rights action brought by a state prisoner under 42
U.S.C. § 1983, one of five such cases filed by Plaintiff
on June 25, 2019. 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 extremely 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); Theriot 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 22, 2019, Defendants mocked him and shot him with bean
bag guns, and Defendant Waltenen digitally penetrated his
anus. Plaintiff makes a conclusory allegation that he is in
imminent danger of further sexual assaults and at risk for
rectal bleeding from those assaults.
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.
2:19-cv-59; Theriot v. Hoffman et al., No.
2:19-cv-58; Theriot v. Lesatz et al., No.
2:19-cv-57; Theriot v. Kirchoffer et al., No.
2:19-cv-56; Theriot v. Lesatz et al., No.
2:19-cv-55; Theriot v. Lesatz et al., No.
2:19-cv-54; Theriot v. Marshall et al., No.
2:19-cv-53. Most recently, on June 25, 2019, Plaintiff filed
five more lawsuits in this Court. Theriot v. Waltenen et
al., No. 2:19-cv-127; Theriot v. Homan et al.,
No. 2:19-cv-126; Theriot v. Parrish et al., No.
2:19-cv-125; Theriot v. Lesatz et al., No.
2:19-cv-124; Theriot v. Pertu et al., No.
2:19-cv-123.
Over
the course of these 50 recent § 1983 complaints,
Plaintiff's allegations have evolved in an attempt to
push the claims forward by incorporating the lessons
Plaintiff has learned about obtaining pauper status under the
imminent-danger exception to the three-strikes rule of 28
U.S.C. § 1915(g). Prior to his most recent flurries of
complaints, Plaintiff was denied leave to proceed in
forma pauperis in all but the following five cases:
Theriot v. Woods et al., No. 2:18-cv-193 (pauper
status granted, but case dismissed as frivolous and
duplicative); Theriot v. Hill et al., No.
2:18-cv-131 (granted pauper status, but dismissed for failure
to state a claim); Theriot v. Lesatz et al., No.
2:18-cv-101 (pauper status granted; all defendants but one
dismissed on grounds of immunity and failure to state a
claim); Theriot v. Woods et al., No. 2:18-cv-92
(pauper status initially denied but granted on
reconsideration; most defendants and claims dismissed for
failure to state a claim; remainder still pending);
Theriot v. Lee et al., No. 2:18-cv-70 (pauper status
granted and case served). The Court regularly concluded that
Plaintiff had failed to allege facts showing that he was in
imminent danger of serious physical injury.
Following
the denials of pauper status in the May through October
cases, Plaintiff initiated new strategies. In Theriot v.
Lee et al., No. 2:18-cv-70, a case in which he was
allowed to proceed in forma pauperis, Plaintiff
filed a motion to consolidate into that action 23 of his
dismissed lawsuits and 13 new lawsuits that he intended to
file. The Court denied his motion on February 13, 2019.
Similarly, in Theriot v. Woods et al., No.
2:18-cv-92, another case in which he was permitted to proceed
in forma ...