United States District Court, E.D. Michigan, Southern Division
GARY M. NORTHINGTON, #193035, Plaintiff,
v.
BADAWI KHADER ABDELLATIF, et al., Defendants.
OPINION AND ORDER DENYING PLAINTIFF'S APPLICATION
FOR LEAVE TO PROCEED WITHOUT PREPAYMENT OF THE FILING FEE AND
DISMISSING THE FIRST AMENDED CIVIL RIGHTS COMPLAINT
PAUL
D. BORMAN, UNITED STATES DISTRICT JUDGE
Michigan
prisoner Gary M. Northington (“Plaintiff”),
currently confined at the Chippewa Correctional Facility in
Kincheloe, Michigan, has filed a pro se first amended civil
rights complaint pursuant to 42 U.S.C. § 1983 and the
Americans with Disabilities Act (“ADA”), as well
as an application to proceed without prepayment of the filing
fee for this action. In his complaint, Plaintiff raises
claims concerning his medical care, his prison transfers, the
taking of his typewriter, legal documents, guitar, and other
property, the grievance process, his access to the courts,
and retaliation. He names medical personnel, prison wardens,
prison employees, and administrative officials employed by
the Michigan Department of Corrections (“MDOC”)
as the defendants in this action. Plaintiff sues the
defendants in their official and personal capacities and
seeks injunctive-type relief and monetary damages.
Under
the Prison Litigation Reform Act (“PLRA”), Pub.
L. No. 104-134, 110 Stat. 1321 (1996), a prisoner may be
precluded from proceeding without prepayment of the filing
fee in a civil action under certain circumstances. The
statute states, in relevant part:
In no event shall a prisoner bring a civil action or appeal a
judgment in a civil action or proceeding under this section,
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). In short, the “three
strikes” provision requires a federal court to dismiss
a civil case where the prisoner seeks to proceed without
prepayment of the filing fee if, on three or more previous
occasions, a federal court has dismissed the prisoner's
action because it was frivolous or malicious or failed to
state a claim upon which relief may be granted. Id.;
see also Dupree v. Palmer, 284 F.3d 1234, 1236 (11th
Cir. 2002) (holding that “the proper procedure is for
the district court to dismiss the complaint without prejudice
when it denies the prisoner leave to proceed in
forma pauperis pursuant to the three strikes
provision of § 1915(g)”).
Plaintiff
is a prolific litigator in federal courts. The Court's
records reveal that he has filed at least three prior civil
actions which have been dismissed as frivolous or for failure
to state a claim upon which relief may be granted. See
Northington v. Armstrong, et al., No. 1:04-CV-00164
(W.D. Mich. Aug. 5, 2004) (dismissing complaint for failure
to state a claim); Northington v. Department of Corr., et
al., Consol. Nos. 2:01-CV-72428, 2:02-CV-71847 (E.D.
Mich. Nov. 20, 2002) (dismissing complaint for failure to
state a claim because it was barred by the statute of
limitations, with an alternative holding that Plaintiff had
not exhausted administrative remedies); Northington v.
Glazer, et al., No. 2:96-CV-71707 (E.D. Mich. May 29,
1996) (dismissing complaint as frivolous). Plaintiff has also
previously been notified of his three-strike status and been
denied leave to proceed without prepaying the filing fee in
at least one other case. See Northington v. Armstrong, et
al., No. 1:10-CV-00424 (W.D. Mich. May 27, 2010)
(denying Plaintiff leave to proceed in forma pauperis based
upon his three prior strikes).
Additionally,
on May 19, 2003, the United States Supreme Court ruled that
Plaintiff had repeatedly abused the Court's process and
directed the Clerk of the Court not to accept any further
petitions from Plaintiff in noncriminal cases unless he paid
the full filing fee. See Northington v. Michigan Dept. of
Corr., 538 U.S. 919 (2003).
Consequently,
Plaintiff is a “three-striker” who cannot proceed
without prepayment of the filing fee unless he shows that he
is “under imminent danger of serious physical
injury.” 28 U.S.C. § 1915(g). To fall within this
exception to the three strikes rule, a prisoner must allege
that the threat or prison condition is “ ‘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, 797-98 (6th
Cir. 2008) (citing Ciarpaglini v. Saini, 352 F.3d
328, 330 (7th Cir. 2003); Abdul-Akbar v. McKelvie,
239 F.3d 307, 313 (3d Cir. 2001) (en banc)). An assertion of
past danger is insufficient to invoke the exception,
id., as is an assertion of the potential for future
harm. See Vandiver v. Vasbinder, 416 Fed.Appx. 560,
562 (6th Cir. 2011) (“[T]he plain language of §
1915(g) requires the imminent danger to be contemporaneous
with the complaint's filing.”). Finally, as the
Sixth Circuit recently clarified, the type of physical injury
alleged must “have potentially dangerous consequences
such as death or severe bodily harm” to qualify as
“serious” for purposes of § 1915(g).
Gresham v. Meden, No. 18-1811, 2019 WL 4458807, at
*2 (6th Cir. 2019).
Plaintiff
fails to show that he is under imminent danger of serious
physical injury. Most of his allegations concern his past
medical care, prison transfers, property taking, grievance
issues/access to the courts, and alleged instances of
retaliation. While he asserts that he continues to have
serious medical conditions, including a heart ailment (for
which he admits that he received surgical treatment in 2016
and 2019), he fails to allege facts which show that he is
under imminent danger of serious physical injury based upon
those conditions. He states that he has experienced the
various ailments since 2013 and that they are ongoing,
suggesting that these ailments are unlikely to lead to
dangerous consequences such as death or severe bodily harm.
Moreover, Plaintiff's concerns about potential future
harm are speculative at best and insufficient to satisfy the
exception to the three strikes rule. Plaintiff fails to
establish that he should be allowed to proceed without
prepayment of the filing fee despite the fact that he has had
three or more prior lawsuits dismissed as frivolous or for
failure to state a claim upon which relief may be granted.
Accordingly,
the Court DENIES Plaintiff's application for leave to
proceed without prepayment of the filing fee for this action
and DISMISSES his first amended civil rights complaint
pursuant to 28 U.S.C. § 1915(g). This dismissal is
without prejudice to the filing of a new civil rights
complaint accompanied by the full payment of the $350.00
filing fee and the $50.00 administrative fee. Any such
complaint will be reviewed to determine whether it should be
served upon the defendants or summarily dismissed, in whole
or in part, under 28 U.S.C. § 1915A(b), which requires a
federal court to dismiss a complaint brought against
governmental entities, officers, and employees if the
complaint is “frivolous, malicious, or fails to state a
claim upon which relief may be granted” or “seeks
monetary relief from a defendant who is immune from such
relief.”
Lastly,
the Court concludes that it has properly applied the
“three strikes” provision of 28 U.S.C. §
1915(g) such that an appeal from this order cannot be ...