United States District Court, E.D. Michigan, Southern Division
ORDER SUMMARILY DISMISSING CASE
TERRENCE G. BERG UNITED STATES DISTRICT JUDGE
Bryan Cary, presently incarcerated at the Macomb Correctional
Facility in New Haven, Michigan, has filed a pro se civil
rights complaint. He sues two Michigan Department of
Corrections employees on the basis that they allegedly
refused to treat his temporomandibular-joint disorder
(“TMJ”). Because Cary has filed an application to
proceed in forma pauperis despite having previously filed
three or more cases in federal court that were dismissed as
frivolous, malicious, or for failure to state a claim upon
which relief can be granted, his application must be denied
and the case dismissed without prejudice for failure to pay
the filing fee. 28 U.S.C. § 1915(g); Thaddeus-X v.
Blatter, 175 F.3d 378, 400 (6th Cir. 1999) (stating that
the Prison Litigation Reform Act of 1995, 28 U.S.C. §
1915(g), precludes the filing of in forma pauperis civil
actions by a prisoner who has had three similar petitions
dismissed as frivolous, malicious, or for failing to state a
ground for relief).
the party instituting a civil action or proceeding in a
federal district court must pay a filing fee of $350. 28
U.S.C. § 1914(a). The federal statute governing
applications to proceed in forma pauperis, 28 U.S.C. §
1915(a), provides prisoners the opportunity to make a
“down payment” in the form of a partial filing
fee and pay the rest in installments. Young v. United
States, No. 14-cv-11930, 2014 WL 2533834, *1 (E.D. Mich.
June 5, 2014) (Ludington, J.). But the Prison Litigation
Reform Act of 1995 (“PLRA”), 28 U.S.C. §
1915(g), contains a “three strikes” provision
that bars prisoners from proceeding in forma pauperis in a
civil action “if the prisoner has, on 3 or more prior
occasions . . . 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.” See Witzke v.
Hiller, 966 F.Supp. 538, 540 (E.D. Mich. 1997)
(providing that a district may sua sponte raise the
“three strikes” provision of the PLRA).
statutory exception to the three-strikes rule for prisoners
asserting “imminent danger of serious physical
injury” requires a prisoner “to allege that he is
under imminent danger at the time that he seeks to file his
complaint.” Robinson v. Yee, No.
2:10-CV-10069, 2010 WL 186155, *1 (E.D. Mich. Jan. 15, 2010).
See Pointer v. Wilkinson, 502 F.3d 368, 371 n.1 (6th
Cir. 2007) (explaining that the Second, Third, Fifth, Eighth,
and Eleventh Circuits have all held that the imminent-danger
exception requires that the danger exist at the time the
complaint is filed). Although the Sixth Circuit has
acknowledged that a plaintiff who alleges a danger of serious
harm due to prison officials' “failure to treat a
chronic illness or condition satisfies the imminent-danger
exception under § 1915(g), ” Vandiver v.
Prison Health Servs., Inc., 727 F.3d 580, 587 (6th Cir
2013), the appellate court has also upheld denial of a
prisoner's motion to proceed in forma pauperis and
dismissal of the complaint where the alleged injury comprised
“various dental problems” that, like here, did
not appear to pose any imminent danger to the prisoner's
health. See Pointer, 502 F.3d at 371 n.1. See
also Northington v. Abdellatif, No. 16-cv-12931, 2017 WL
2240273, at *4 & n.6 (E.D. Mich. Apr. 7, 2017) (Report
and Recommendation) (Majzoub, M.J.) (severing and dismissing
without prejudice a prisoner's claims related to dental
care on the basis that those claims did not fit within the
Court finds that Cary's allegations about
prison-healthcare providers' refusal to treat his TMJ do
not rise to the level of “imminent danger of serious
physical injury.” See Menefee v. Pramstaller,
No. 2:06-CV-012922, 2006 WL 2160411, at *1 (E.D. Mich. Jul.
31, 2006) (holding that plaintiff failed to sufficiently
allege imminent danger of future harm where he
“complain[ed] that his medical needs are not being met
regarding his dental care, allergies, podiatry issues, skin
discoloration, lack of access to his eye glasses,
etc.”). Cf. Ashley v. Dilworth, 147 F.3d 715,
717 (8th Cir. 1988) (finding that plaintiff sufficiently
alleged imminent danger of serious physical injury where he
claimed he was placed near inmates on his enemy list and
subject to ongoing danger).
Cary has previously filed at least three civil actions in
federal court that were dismissed as frivolous or for failure
to state a claim upon which relief may be granted. See
Cary v. Losacco, No. 18-cv-11396 (E.D. Mich. July 11,
2018); Cary v. McCaul, No. 18-cv-00652 (W.D. Mich.
Aug. 15, 2018); Cary v. Eaton, No. 11-cv-13151 (E.D.
Mich. Oct. 17, 2011). Cary has also previously filed cases
that were dismissed pursuant to the “three
strikes” rule set forth in 28 U.S.C. § 1915(g).
See, e.g., Cary v. Sgt. Peterson, No. 19-cv-13393
(E.D. Mich. Nov. 27, 2019); Cary v. Parole Bd., et
al., No. 19-cv-12634 (E.D. Mich. Nov. 18, 2019);
Cary v. McCumber-Hemry, No. 17-cv-12842 (E.D. Mich.
July 12, 2018).
Cary asserts that his TMJ condition causes him pain, he does
not allege facts that suggest he is in imminent or specific
danger of future serious injury. Accordingly, he does not
fall within the imminent-danger exception to 28 U.S.C.§
1915(g). And because Cary has on more than three prior
occasions filed complaints that were dismissed on the basis
of frivolity, maliciousness, or for failure to state a claim,
he is barred by § 1915(g) from proceeding in forma
pauperis in the instant case.
it is hereby ORDERED that Plaintiff Bryan
Cary's in forma pauperis application is
DENIED and the Complaint is therefore
DISMISSED without prejudice pursuant to 28
U.S.C. § 1915(g). Should Cary wish to pursue this
lawsuit, he must re-file his Complaint along with the full
filing fee. It is further ORDERED that any