Daniel #537193 v. Givens et al, No. 1:2013cv01307 - Document 5 (W.D. Mich. 2013)
Court Description: OPINION; signed by Judge Gordon J. Quist (Judge Gordon J. Quist, jmt)
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UNITED STATES OF AMERICA UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION ALLEN D. DANIEL, Plaintiff, v. Case No. 1:13-cv-1307 Honorable Gordon J. Quist DEBORAH GIVENS et al., Defendants. ____________________________________/ OPINION DENYING LEAVE TO PROCEED IN FORMA PAUPERIS - THREE STRIKES Plaintiff Allen D. Daniel, a prisoner incarcerated by the Michigan Department of Corrections (MDOC) at Baraga Correctional Facility (AMF), filed a complaint pursuant to 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 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 $400.00 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 serious physical injury. The Sixth Circuit has upheld the constitutionality of the three-strikes rule -2- 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, having filed over twenty civil actions. At least five of Plaintiff s lawsuits have been dismissed as frivolous or for failure to state a claim. See, e.g., Daniel v. Paionte et al., No. 2:08-cv-13999 (E.D. Mich. Oct. 7, 2008); Daniel v. Hofbauer et al., No. 2:08-cv-118 (W.D. Mich. Sept. 26, 2008); Daniel v. Hackel et al., 2:08-cv-14000 (E.D. Mich. Sept. 25, 2008); Daniel v. Granholm, No. 2:08-cv-10999 (E.D. Mich. Apr. 11, 2008); Daniel v. Caruso et al., No. 2:08-cv-11000 (E.D. Mich. Apr. 10, 2008). 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. The 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 F. App x 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 F. App x 488, 492 (6th Cir. 2012)] ( Allegations of past dangers are insufficient to invoke the exception. ); Percival v. Gerth, 443 F. App x 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 imminent-danger exception). -3- 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 F. App x at 798 (internal quotation marks and citations omitted); see also Taylor, 508 F. App x at 492 ( Allegations that are conclusory, ridiculous, or clearly baseless are also insufficient for purposes of the imminent-danger exception. ). Vandiver v. Prison Health Serv., Inc., 727 F.3d 580, 585 (6th Cir. 2013). A prisoner s claim of imminent danger is subject to the same notice pleading requirement as applied to prisoner complaints. Id. Consequently, a prisoner must allege facts in the complaint from which court could reasonably conclude that the prisoner was under an existing danger at the time he filed his complaint, but the prisoner need not affirmatively prove those allegations. Id. Plaintiff s allegations primarily concern events occurring in the years 2010 and 2011,1 while he was incarcerated at Ionia Correctional Facility (ICF). Defendants include the Director of the MDOC and MDOC employees working at ICF. The ICF Defendants allegedly denied Plaintiff medical care, intentionally injured him, and allowed him to be assaulted by other prisoners. Plaintiff was transferred out of ICF in March 2011 and arrived at AMF in July 2011. He makes no allegations concerning his present conditions. Thus, he has not alleged a present risk of harm. The fact that he faced danger in the past is not sufficient to satisfy the imminent-danger exception. See Rittner, 290 F. App x at 797. Consequently, § 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 $400.00. When Plaintiff pays his filing fee, the Court will 1 In 2012, Plaintiff attempted to complete the grievance appeal process for grievances that were filed in 2011. -4- 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 $400.00 filing fee. Dated: December 27, 2013 /s/ Gordon J. Quist GORDON J. QUIST 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. -5-
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