United States District Court, W.D. Michigan, Southern Division
OPINION DENYING LEAVE TO PROCEED IN FORMA PAUPERIS -
T. Neff United States District Judge
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).
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 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
Cromer v. Masker, No. 2:13-cv-15 (W.D. Mich. Apr. 9,
2013); Cromer v. United States of America, No.
2:16-cv-94 (W.D. Mich. June 29, 2016); Cromer v.
Place, No. 2:16-cv-108 (W.D. Mich. Sept. 30, 2016);
Cromer v. Snyder, No. 1:17-cv-94 (W.D. Mich. Mar.
27, 2017). Additionally, Plaintiff has been denied leave to
proceed in forma pauperis because he has filed at
least three such frivolous, malicious, or insufficient
complaints. See Smith v. Washington, No. 1:17-cv-285
(W.D. Mich. Apr. 6, 2017); Cromer v. Snyder, No.
1:17-cv-94 (W.D. Mich. Feb. 16, 2017); Cromer v. Stephan
et al., No. 1:19-cv-150 (W.D. Mich. Mar. 11, 2019).
is aware of his three strikes and the “imminent
danger” exception that might permit him to proceed
in forma pauperis despite those strikes. Plaintiff
titled his immediately preceding complaint in Cromer v.
Stephan et al., “IMMINENT DANGER, ”
mentioned imminent danger in the preface, and expressly
alleged that his “‘imminent danger' lawsuit
bypass[es] the burden of the 3 strike rule.” Cromer
v. Stephan et al., No. 1:19-cv-150 (Compl., ECF No. 1,
PageID.1, 3.) The Court informed him that merely parroting
the words “imminent danger” did not satisfy the
present complaint, Plaintiff makes no reference to imminent
danger of serious physical injury. His complaint is a
mish-mash of claims challenging the lawfulness of his
incarceration, the lawfulness of this placement in
administrative segregation, the taking of his legal and other
property, and interference with his access to the court to
pursue habeas corpus relief. In addition to those claims,
Plaintiff complains that Corrections Officer Unknown
Tinerella, on August 28, 2019, while bringing Plaintiff to
administrative segregation, pulled Plaintiff to the ground,
kneed him in the ribs, and over-tightened the handcuffs.
(Compl., ECF No. 1, PageID.5.) As a result, Plaintiff
“sustained bruised ribs and sore and swollen
wrist[s].” (Id., PageID.8.) He was provided
healthcare by an unknown nurse. (Id.) He claims he
still has some pain, but that healthcare will not see him for
three months. (Id.)
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
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 ...