Jennings #213611 v. Hall et al, No. 1:2010cv00110 - Document 5 (W.D. Mich. 2010)
Court Description: OPINION ; signed by Chief Judge Paul L. Maloney (Chief Judge Paul L. Maloney, aeb)
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UNITED STATES OF AMERICA UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION FLOYD JENNINGS, Plaintiff, v. Case No. 1:10-cv-110 Honorable Paul L. Maloney MIKE HALL et al., Defendants. ____________________________________/ OPINION VACATING ORDER GRANTING LEAVE TO PROCEED IN FORMA PAUPERIS - THREE STRIKES Plaintiff Floyd Jennings, a prisoner incarcerated at Chippewa Correctional Facility, filed a complaint pursuant to 42 U.S.C. § 1983. Plaintiff sought leave to proceed in forma pauperis, and leave initially was granted (docket #4). Upon further review of Plaintiff s filings in the Eastern District of Michigan, it is now apparent that Plaintiff has filed at least three lawsuits that were dismissed as frivolous, malicious or for failure to state a claim. He therefore is barred from proceeding in forma pauperis under 28 U.S.C. § 1915(g). The Court will vacate its prior order granting pauper status and order Plaintiff to pay the $350.00 civil action filing fee within twentyeight (28) days of this opinion and accompanying order. If Plaintiff fails to do so, the Court will order that his action be dismissed without prejudice. Even if the case is dismissed, Plaintiff will be responsible for payment of the $350.00 filing fee in accordance with In re Alea, 286 F.3d 378, 38081 (6th Cir. 2002). Discussion The 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 put into place 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 1288. In 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 -2- 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.1998); accord Rodriguez v. Cook, 169 F.3d 1176, 1178-82 (9th Cir. 1999); Rivera v. Allin, 144 F.3d 719, 723-26 (11th Cir. 1998); Carson v. Johnson, 112 F.3d 818, 821-22 (5th Cir. 1997). Plaintiff has been an active litigant in the federal courts in Michigan. In three of Plaintiff s lawsuits, the Court entered dismissals on the grounds that they were frivolous, malicious or failed to state a claim. See Jennings v. Garrett, No. 2:08-cv-12463 (E.D. Mich. July 1, 2008); Jennings v. Weberg et al., No. 2:06-cv-235 (W.D. Mich. Jan. 9, 2007); Jennings v. Gundy et al., No. 1:01-cv-646 (W.D. Mich. Dec. 19, 2001). Plaintiff also previously has been denied leave to proceed in forma pauperis under the three-strikes rule. See Jennings v. Birkett et al., No. 1:08-cv-14405 (E.D. Mich. Dec. 2, 2008). Plaintiff suggests that he should be allowed to proceed in forma pauperis under the imminent danger exception of § 1915(g). Plaintiff complains that Defendants used excessive force against him in response to a disturbance, notwithstanding their knowledge that he suffered from a mental illness that caused him to act out. He alleges that, during the altercation, his nose was broken. He contends that Defendants are not treating his broken nose properly and that their failure to treat will cause increasing problems with his breathing through his nose. As the Court previously concluded, however, the statute clearly bars granting pauper status unless the complaint falls under the exception for an inmate under imminent danger of serious physical injury. 28 U.S.C. § 1915(g). Plaintiff fails to allege either serious physical injury or that the serious physical injury is imminent in this case. -3- Although Congress also did not define serious physical injury, various courts have interpreted the meaning of the phrase. In Ibrahim v. District of Columbia, 464 F.3d 3, 7 (D.C. Cir. 2006), the D.C. Circuit concluded that a chronic disease that could result in serious harm or even death constitutes serious physical injury. Id. Similarly, in Brown v. Johnson, 387 F.3d 1344, 1350 (11th Cir. 2004), the Eleventh Circuit found that HIV and Hepatitis C, both chronic and potentially fatal diseases, met the serious physical injury requirement. Moreover, in Ciarpaglini v. Saini, 352 F.3d 328, 330 (7th Cir. 2003), the Seventh Circuit recognized that heart palpitations, chest pains, labored breathing, choking sensations, and paralysis in . . . legs and back resulting from a denial of medication were serious physical injury. Id. The Eighth Circuit also has addressed the question, concluding that a spreading infection in the mouth that resulted from a lack of proper dental treatment amounted to a serious physical injury. McAlphin v. Toney, 281 F.3d 709, 710 (8th Cir. 2002). Plaintiff s alleged serious physical injury is an injury to his nose that he contends makes breathing through his nose more difficult. Despite Plaintiff s hyperbolic language, the condition, while irritating and uncomfortable at times, falls short of the sort of conditions that threaten serious harm or death found in Ibrahim, Brown, Ciarpaglini, and McAlphin. The injury therefore is not sufficiently dangerous or impairing to constitute serious physical injury as other courts have defined it. Further, Plaintiff fails to allege that any worsened nasal condition is imminent. As with serious physical injury, Congress did not define imminent danger in the PLRA. It did, however, choose to use the word imminent, a word that conveys the idea of immediacy. Imminent is Near at hand . . . impending; on the point of happening; threatening, menacing, perilous. Something which is threatening to happen at once, something close at hand, something -4- to happen upon the instant . . . and on the point of happening. BLACK S LAW DICTIONARY, 514-15 (6th ed. 1991). Imminent is also defined as ready to take place, near at hand, impending, hanging threateningly over one s head, menacingly near. WEBSTER S THIRD NEW INTERNATIONAL DICTIONARY, 1130 (1976). Imminent danger is such an appearance of threatened and impending injury as would put a reasonable and prudent man to his instant defense. BLACK S LAW DICTIONARY, 515 (6th ed. 1991). In a recent decision, the Sixth Circuit recognized the standard adopted by other circuit courts: While the Sixth Circuit has not defined the term imminent danger for purposes of this section, other Circuits have held that to meet the requirement, 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. See, e.g., 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). Thus a prisoner s assertion that he or she faced danger in the past is insufficient to invoke the exception. Id. Rittner v. Kinder, 290 F. App x 796, 797-98 (6th Cir. 2008). Plaintiff does not allege facts that demonstrate any real or proximate danger that his nasal condition is likely to become something more serious -- either in the immediate or distant future. As a consequence, Plaintiff fails to demonstrate that any serious danger is imminent. For both reasons, Plaintiff falls outside the scope of the imminent danger exception. In light of the foregoing, § 1915(g) prohibits Plaintiff from proceeding in forma pauperis in this action. The Court will vacate as improvidently granted its order granting leave to proceed in forma pauperis (docket #4). Plaintiff has twenty-eight (28) days from the date of entry of this order to pay the entire civil action filing fee, which is $350.00. 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). -5- If Plaintiff fails to pay the filing fee within the 28-day period, his case will be dismissed without prejudice, but he will continue to be responsible for payment of the $350.00 filing fee. Dated: March 3, 2010 /s/ Paul L. Maloney Paul L. Maloney Chief United States District Judge SEND REMITTANCES TO THE FOLLOWING ADDRESS: Clerk, U.S. District Court 399 Federal Building 110 Michigan Street, NW Grand Rapids, MI 49503 All checks or other forms of payment shall be payable to Clerk, U.S. District Court. -6-
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