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Theriot v. Lesatz

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

August 28, 2019

KEVIN DWAYNE THERIOT, Plaintiff,
v.
DANIEL LESATZ et al., Defendants.

          OPINION DENYING LEAVE TO PROCEED IN FORMA PAUPERIS - THREE STRIKES

          GORDON J. QUIST 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. Waltenen et al., No. 1:19-cv-127 (W.D. Mich. July 18, 2019); 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 Defendant Warden Lesatz conducted a round on June 11, 2019. Lesatz asked Plaintiff why he had not appeared at his Security Classification Committee (SCC) hearing the previous day. Plaintiff responded that he had not been allowed to go, because Lieutenant Wickstrom had placed him on “no out of cell movements” for having rejected Wickstrom's sexual advances. (Compl., ECF No. 1, PageID.3.) Warden Lesatz allegedly smirked. Ten minutes later, Lesatz returned with Lieutenant Wickstrom, Captains Delene and Beauchamp, and RUM Niemi. Lesatz told Plaintiff to repeat what he had told Lesatz to the other officers. When Plaintiff did so, Wickstrom produced a can of spray and began to shake it. Niemi then opened the food slot, and Wickstrom sprayed Plaintiff with pepper spray. Plaintiff alleges that Warden Lesatz ordered the others to hold Plaintiff down. While Plaintiff was held down, his pants were pulled down. Wickstrom whispered in Plaintiff's ear, “You can never reject my sexual advances!” (Id.) Wickstrom then allegedly raped Plaintiff.

         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 more than 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. Holma 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 ...


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