United States District Court, W.D. Michigan, Northern Division
OPINION VACATING AUGUST 26, 2019, ORDER AND DENYING
LEAVE TO PROCEED IN FORMA PAUPERIS - THREE STRIKES
T. NEFF UNITED STATES DISTRICT JUDGE
a civil rights action brought by a state prisoner under 42
U.S.C. § 1983. Plaintiff sought leave to proceed in
forma pauperis. In an order (ECF No. 3) issued on August
26, 2019, the Court granted the motion. Upon further review,
it appears that leave was improvidently granted. Accordingly,
the Court will vacate its August 26, 2019, order. 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 at least nine of his cases, Plaintiff's
claims were dismissed because they were frivolous, malicious
or failed to state a claim. See Gresham v. Washington et
al., No. 1:15-cv-1067 (W.D. Mich. Jan. 6, 2016);
Gresham v. Caruso et al., No. 2:10-cv-196 (W.D.
Mich. Oct. 27, 2011); Gresham et al. v. Canlis et
al., No. 2:11-cv-179 (W.D. Mich. July 29, 2011);
Gresham v. Payne et al., No. 1:10-cv-1146 (W.D.
Mich. Mar. 8, 2011); Gresham v. Caruso et al., No.
1:10-cv-1038 (W.D. Mich. Jan. 26, 2011); Gresham v. Wolak
et al., No. 2:10-cv- 239 (W.D. Mich. July 25, 2011);
Gresham v. Verville et al., No. 2:10-cv-198 (W.D.
Mich. Jan. 19, 2011); Gresham v. Caruso et al., No.
2:10-cv-195 (W.D. Mich. Apr. 11, 2011); Gresham v. Mich.
Dep't of Corr. et al., No. 2:07-cv-241 (W.D. Mich.
June 9, 2008). Plaintiff also has been denied leave to
proceed in forma pauperis in numerous cases. See
Gresham v. Meden et al., No. 2:18-cv-9 (W.D. Mich. July
19, 2018); Gresham v. Smith et al., No. 1:16-cv-1402
(W.D. Mich. Jan. 4, 2017); Gresham v. Miniard et
al., No. 1:16-cv-427 (W.D. Mich. June 7, 2016);
Gresham v. Christiansen et al., No. 1:16-cv-428
(W.D. Mich. May 13, 2016); Gresham v. Austin et al.,
2:16-cv-71 (W.D. Mich. May 2, 2016); Gresham et al. v.
Yunker et al., No. 2:13-cv-221 (W.D. Mich. Aug. 29,
2013); Gresham v. Nader et al., 2:13-cv-212 (W.D.
Mich. July 22, 2013); Gresham et al. v. Napel et
al., No. 2:13-cv-176 (W.D. Mich. June 12, 2013);
Gresham v. Prelesnik et al., No. 1:12-cv-276 (W.D.
Mich. July 2, 2012); Gresham v. Czop et al., No.
1:12-cv-494 (W.D. Mich. June 18, 2012); Gresham v. Heyns
et al., No. 1:12-cv-277 (W.D. Mich. Apr. 11, 2012);
Gresham v. Snyder et al., No. 1:12-cv-143 (W.D.
Mich. Mar. 6, 2012); Gresham v. Mutschler et al.,
No. 2:12-cv-12 (W.D. Mich. Apr. 20, 2012); Gresham v.
Snyder et al., No. 2:12-cv-22 (W.D. Mich. Mar. 30,
2012); Gresham v. Mutschler et al., No. 2:12-cv-9
(W.D. Mich. Feb. 10, 2012); Gresham v. Snyder et
al., No. 2:12-cv-5 (W.D. Mich. Jan. 27, 2012);
Gresham v. Violetta et al., No. 2:12-cv-24 (W.D.
Mich. Feb. 6, 2012); Gresham v. Dahl et al., No.
2:12-cv-21 (W.D. Mich. Feb. 6, 2012); Gresham v. Napel et
al., No. 2:11-cv-520 (W.D. Mich. Feb. 6, 2012);
Gresham v. LaChance et al., No. 2:11-cv-231 (W.D.
Mich. June 24, 2011); Dennis et al v. Canlis et al.,
No. 2:11-cv-186 (W.D. Mich. June 6, 2011).
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 he is in imminent danger because the named
Defendants, all of whom are medical providers at the
Marquette Branch Prison (MBP), failed in the past to treat
his two serious hernias. However, both at the time Plaintiff
filed his complaint and now, Plaintiff was housed at the
Carson City Correctional Facility (DRF). As a consequence,
none of the Defendants in this action has any control over
Plaintiff's ongoing medical treatment. Where, as here,
Plaintiff's allegations pertain to events that occurred
at a facility other than his current place of incarceration,
a plaintiff no longer is in imminent danger from the
defendants he sues. See Day v. Maynard, 200 F.3d
665, 667 (10th Cir. 1999).
§ 1915(g) prohibits Plaintiff from proceeding in
forma pauperis in this action. The Court therefore will
vacate its August 26, 2019, order granting leave to proceed
in forma pauperis as improvidently granted.
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 ...