Marr #186617 v. Purves, No. 1:2011cv01258 - Document 5 (W.D. Mich. 2011)

Court Description: OPINION vacating an order to proceed IFP and denying leave to proceed IFP (3x); Order to issue; signed by Judge Janet T. Neff (Judge Janet T. Neff, clb)

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UNITED STATES OF AMERICA UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION MICHAEL MARR, Plaintiff, v. Case No. 1:11-cv-1258 Honorable Janet T. Neff BRAD PURVES, Defendant. ____________________________________/ OPINION DENYING LEAVE TO PROCEED IN FORMA PAUPERIS - THREE STRIKES Plaintiff Michael Marr, a prisoner incarcerated with the Michigan Department of Corrections (MDOC) at the Lakeland Correctional Facility, filed a complaint pursuant to 42 U.S.C. § 1983. Plaintiff sought leave to proceed in forma pauperis. The Court granted leave to proceed in forma pauperis on December 2, 2011. It has now come to the Court s attention that Plaintiff has filed at least three lawsuits that were dismissed as frivolous, malicious or for failure to state a claim, so he is barred from proceeding in forma pauperis under 28 U.S.C. § 1915(g). The Court therefore will vacate its December 2, 2011 order and direct Plaintiff to pay the $350.00 civil action filing fee within twenty-eight (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, 380-81 (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 Pointer v. Wilkinson, 502 F.3d 369, 377 (6th Cir. 2007) (citing Wilson, 148 F.3d at 604-06); 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 at least three of Plaintiff s lawsuits, the Court entered dismissals on the grounds that his claims were frivolous or failed to state a claim. See Marr v. Case, No. 1:07-cv-823 (W.D. Mich. Jan. 18, 2008); Marr v. Michigan, No. 1:94-cv-10273 (E.D. Mich. Dec. 21, 1994); Marr v. Madery, No. 2:94-cv73114 (E.D. Mich. Sept. 19, 1994). Although two of the dismissals were entered before enactment of the PLRA on April 26, 1996, the dismissals nevertheless count as strikes. See Wilson, 148 F.3d at 604. Moreover, Plaintiff s allegations do not fall within the exception to the three-strikes rule because he does not allege any facts establishing that he is under imminent danger of serious physical injury. See 28 U.S.C. § 1915(g). Congress did not define imminent danger in the PLRA, but it is significant that Congress chose 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 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 -3- 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). The Sixth Circuit has recognized the standard previously 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. Other Circuits also have held that 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, Ciarpaglini, 352 F.3d at 331, or are clearly baseless (i.e. are fantastic or delusional and rise to the level of irrational or wholly incredible). Gibbs v. Cross, 160 F.3d 962, 967 (3d Cir.1998) (quoting Denton v. Hernandez, 504 U.S. 25, 33 (1992)). Rittner v. Kinder, 290 F. App x 796, 797-98 (6th Cir. 2008); see also Vandiver v. Vasbinder, 416 F. App x 560, 561-62 (6th Cir. 2011) (imminent danger must be contemporaneous with the complaint s filing); Pointer v. Wilkinson, 502 F.3d 369, 371 n.1 (6th Cir. 2007) (holding that assertions of past danger do not satisfy the imminent-danger exception). Similarly, although Congress also did not define serious physical injury, various courts have interpreted the meaning of the phrase to require substantial seriousness. 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 -4- Seventh Circuit recognized that heart palpitations, chest pains, labored breathing, choking sensations, and paralysis in . . . legs and back resulting from a denial of medication constituted a 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 alleges that, in 2005, the MDOC changed its nutritional standards to comport with the 2005 Dietary Guidelines for Americans published by the United States Departments of Agriculture and Health and Human Services, citing MICH. DEP T OF CORR., Policy Directive 04.07.100. Plaintiff complains that the policy directive has not been updated with the new 2010 federal guidelines. He also alleges that, since the policy change, the daily calorie intake for an adult male has been lowered from 3,200 calories to 2,600 calories. In addition, he complains that Defendant Purves has ordered that all facility food service directors begin aligning their religious menus with the statewide menu for non-religious foods, resulting in certain items, such as bagels and cold cereals, being eliminated from the kosher menu and kosher vegetable rations being identical to those available to all prisoners. Plaintiff complains that he should receive a 3,200calorie diet and that the changes to the kosher menu violate his religious beliefs. He also claims that the reduction in high-fiber foods has caused him constipation, a lack of resistence to ineur [sic] cellular mutation, and an inability to maintain liver integrity and congruity. (Compl. ¶¶ 25, 2829, docket #1, Page ID#5.) He claims that the dietary changes violate the Eighth and First Amendments. Although Plaintiff asserts that he should receive a greater number of calories, he at no time alleges that he is experiencing weight loss of any sort, much less unhealthy weight loss. Moreover, his claims regarding constipation fall far short of the seriousness of physical injury -5- contemplated by the imminent-danger exception. Further, his nonsensical allegations that he is at risk of cellular mutation or liver incongruity are wholly frivolous. He therefore fails to allege that he is in imminent danger of serious physical injury caused by the changes to his prison diet. In light of the foregoing, § 1915(g) prohibits Plaintiff from proceeding in forma pauperis in this action. 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). 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: December 21, 2011 /s/ Janet T. Neff Janet T. Neff 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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