United States District Court, E.D. Michigan, Southern Division
ORDER GRANTING PLAINTIFF'S APPLICATION TO PROCEED WITHOUT
PREPAYING FEES AND COSTS, DIRECTING INITIAL PARTIAL FILING
FEE PAYMENT AND SUBSEQUENT PAYMENTS, DISMISSING
PLAINTIFF'S CLAIMS UNDER 42 U.S.C. §§ 1981,
1985, AND 1986, DISMISSING PLAINTIFF'S CLAIMS CHALLENGING
HIS ASSAULT CONVICTION AND PRISON DISCIPLINARY PROCEEDING,
AND DIRECTING PLAINTIFF TO PROVIDE ADDRESSES FOR THE TWELVE
DEFENDANTS THAT REMAIN IN THE CASE
M. Lawson United States District Judge.
Darrin LaPine, a state prisoner at the Macomb Correctional
Facility in Lenox Township, Michigan, recently filed a
pro se civil rights complaint and an application to
proceed without prepaying the fees or costs for this action.
He alleges that the defendants have violated state law and
his federal constitutional rights by prosecuting him for an
assault on another inmate and by denying him medical care.
Because his challenges to the fairness of the prison
disciplinary proceeding and criminal prosecution are not
properly asserted in a civil rights action, those claims must
be dismissed. And because LaPine has not alleged facts that
support recovery under any legal theory contemplated by 42
U.S.C. §§ 1981, 1985 or 1986, those claims will be
dismissed as well. LaPine may proceed with his medical claims
under 42 U.S.C. § 1983, but he must follow the
procedures outlined in this order, which includes furnishing
addresses for the defendants who remain in this case.
alleges in his complaint that on May 24, 2015, while he was
on parole at the Detroit Reentry Center, a fellow inmate
named Michael Mileski accused him of biting Mileski's
cheek and attempting to scratch Mileski's face. Later,
Mileski changed his claim and maintained that LaPine had
inserted his fingers in Mileski's eyes and tried to gouge
them out. Defendant Michael Nelson filed a critical incident
report about the alleged assault, but LaPine was not provided
with any discovery materials, and the hearing investigator
refused to investigate the matter. LaPine was found guilty of
the disciplinary charge even though no one questioned the
witnesses or provided any physical evidence to support the
charge. The disciplinary case was then referred to the
Michigan State Police for possible criminal charges. LaPine
claims that he was arrested without probable cause and has
been falsely imprisoned since then. Compl., ¶ 1, PageID.
Derek Emme of the Michigan State Police requested a warrant,
and around September 14, 2016, the Wayne County
Prosecutor's Office authorized a warrant. LaPine was
charged with one count of assault with intent to maim or
disfigure Mileski. On October 18, 2016, a video arraignment
was conducted, and at a preliminary examination on November
30, 2016, the presiding judge concluded that there was
probable cause to charge LaPine with a felony. LaPine,
however, contends that there was no probable cause to charge
him, his arrest was illegal, and his imprisonment is illegal.
Compl., ¶¶1-2, PageID 6-7.
LaPine alleges that, on February 21, 2017 or thereabout,
while he was being held in the Wayne County Jail, he was
handcuffed to another prisoner and told to climb the stairs
instead of taking the elevator in the tunnel that leads
between the jail and the county courts. Defendant Dyer stood
by and allowed this to happen, despite knowing that LaPine
could not climb stairs. The other inmate lost control of his
legal materials, and both he and LaPine fell to the tunnel
floor below. LaPine suffered cuts, abrasions, lumps, bruises,
and pain from the fall, but he did not receive any treatment
for his injuries. He complained to defendant D. Jones who did
nothing, and defendant Dicksen threatened to beat him if he
complained about being injured and needing medical care.
LaPine claims that he would not have fallen or been injured
if it had not been for the order to climb the stairs. Compl.,
¶ 5, PageID. 7-9.
February 22, 2017, defendants Degasriapo and D. Jones took
LaPine to the medical unit in a wheelchair, but the deputies,
nurses, and Dr. Huq laughed at him, and he was not treated
for his injuries. Dr. Huq made him walk, but he fell again
and re-injured himself. He was finally given a stroller with
a seat, and defendant Bordeau escorted him back to his cell,
where he had to give up his stroller. Compl., ¶ 5,
February 24, 2017, defendant Degasriapo informed LaPine that
he would have to walk about half a mile to the medical unit
to get medical treatment and x-rays. LaPine never received
any medical treatment because he could not walk to the
medical unit. Compl., ¶6, PageID. 10.
February 27, 2017, LaPine's criminal case on the assault
charge was dismissed due to pre-arrest delay. The prosecutor,
however, appealed the trial judge's decision, and on
November 15, 2018, the Michigan Court of Appeals remanded the
case because no intentional delay or prejudice had been
shown. The Michigan Supreme Court declined to grant leave to
appeal. LaPine, however, maintains that the Wayne County
Prosecutor's Office misrepresented to the state circuit
court that there were no videos, no intentional delay, and no
known witnesses. He also alleges in conclusory fashion that
the criminal case was the result of a conspiracy and that it
was a retaliatory act done in violation of his right to due
process. Compl., ¶ 7, PageID. 10-11.
2019, LaPine's parole was suspended, reinstated, and
suspended again, apparently as a result of the criminal case
against him. Additionally, the state trial court refused to
hear LaPine's motions to dismiss the criminal case even
though the motions alleged that the defendants had engaged in
corrupt conduct. Compl., ¶¶ 8-9, PageID. 11.
concludes his complaint by alleging that he was scheduled for
spinal surgery on October 2, 2019, and that he was assured by
defendants Duram, Graham, and Long that the scheduled surgery
had been coordinated with Henry Ford Hospital. Dr. Patsalis
and Dr. Myles also assured LaPine that he was having surgery
on October 2, 2019. According to LaPine, the surgery was not
performed, and there is a reasonable likelihood that he will
be paralyzed as a result of the failure to receive the
surgery. Compl. ¶ 9, PageID. 11-12.
does not say what relief he wants, but he contends that the
defendants intentionally delayed his arrest to their
advantage, maliciously prosecuted him, and deprived him of
medical treatment and surgery. These acts and omissions, he
claims, violated his rights under the Fourth, Fifth, Eighth,
and Fourteenth Amendments. Compl. ¶ 9, PageID. 12-13.
as here, a plaintiff has asked the Court to waive fees and
costs because he cannot afford to pay them, the Court has an
obligation to screen the case for merit and dismiss the case
if it “(i) is frivolous or malicious; (ii) fails to
state a claim on which relief may be granted; or (iii) seeks
monetary relief against a defendant who is immune from such
relief.” 28 U.S.C. § 1915(e)(2)(B).
or more of LaPine's previous civil cases were dismissed
as frivolous or for failure to state a claim. See LaPine
v. Romanowski, No. 15-cv-11362, ECF No. 6, PageID. 42-43
(E.D. Mich. May 15, 2015) (collecting cases). Therefore, he
is subject to the “three strikes” rule, which
means that he is not entitled to proceed without prepayment
of the fees and costs for this action unless he “is
under imminent danger of serious physical injury.” 28
U.S.C. § 1915(g). As contemplated by that statute,
“[a] physical injury is ‘serious' . . . if it
has potentially dangerous consequences such as death or
severe bodily harm.” Gresham v. Meden, 938
F.3d 847, 850 (6th Cir. 2019).
has satisfied that exception here. He alleges that he has
impingement on nerve roots, severe spinal stenosis,
degenerative disk disease, acute sciatica, herniated and
bulging disks, severe arthritis, and severe neuropathy.
According to him, the surgery that was scheduled to alleviate
these problems has been postponed and, therefore, he is at
risk of irreparable harm and he is in imminent danger of a
life-threatening injury. Compl., ECF No. 1, PageID. 2-3.
These are sufficient allegations of “imminent
danger” to trigger the exception in § 1915(g).
will be permitted to proceed without prepaying the
fees or costs for this action, but he eventually must pay the
full filing fee for this action. 28 U.S.C. § 1915(b)(1).
The Court must assess and, if funds exist, collect an initial
partial filing fee consisting of 20% of the greater of (1)
the average monthly deposits to LaPine's prison trust
fund account or (2) the average monthly balance in
LaPine's account for the preceding six months.
Ibid. After LaPine pays the initial partial filing