Johnson #753595 v. Brown et al, No. 1:2020cv00434 - Document 5 (W.D. Mich. 2020)

Court Description: OPINION; signed by District Judge Paul L. Maloney (Judge Paul L. Maloney, cmc)

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Johnson #753595 v. Brown et al Doc. 5 Case 1:20-cv-00434-PLM-RSK ECF No. 5 filed 05/29/20 PageID.65 Page 1 of 5 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION ______ DARREN DEON JOHNSON, Plaintiff, v. Case No. 1:20-cv-434 Honorable Paul L. Maloney M. BROWN et al., Defendants. ____________________________/ OPINION DENYING LEAVE TO PROCEED IN FORMA PAUPERIS - THREE STRIKES This is a civil rights action brought by a state prisoner under 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. This fee must be paid within twenty-eight (28) days of this opinion and accompanying order. If Plaintiff fails to pay the fee, the Court will order that this case be dismissed without prejudice. Even if the case is dismissed, Plaintiff must pay 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 Dockets.Justia.com Case 1:20-cv-00434-PLM-RSK ECF No. 5 filed 05/29/20 PageID.66 Page 2 of 5 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 created 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 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). 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 the cases were frivolous, malicious, and/or failed to state a claim. See Johnson v. Quist, No. 2:12-cv-11907 (E.D. Mich. July 10, 2012); Johnson v. Kuehne, No. 2:12-cv-12878 (E.D. Mich. July 31, 2012); Johnson v. 2 Case 1:20-cv-00434-PLM-RSK ECF No. 5 filed 05/29/20 PageID.67 Page 3 of 5 Harrison, No. 2:12-cv-12543 (E.D. Mich. Aug. 2, 2012). Plaintiff also has, on multiple occasions, been denied leave to proceed in forma pauperis, because he has accumulated three strikes. Johnson v. Hoober et al., No. 1:18-cv-855 (W.D. Mich. Aug. 10, 2018); Johnson v. Pallas et al., No. 1:17-cv-1016 (W.D. Mich. Dec. 5, 2017); Johnson v. Miller, No. 1:17-cv-884 (W.D. Mich. Oct. 24, 2017); Johnson v. Mark, No. 2:17-cv-10232 (E.D. Mich. Jan. 27, 2017); Johnson v. Kinder, No. 2:16-cv-12698 (E.D. Mich. Aug. 23, 2016); Johnson v. Hulet, No. 1:13-cv-837 (W.D. Mich. Aug. 15, 2013). Moreover, Plaintiff’s allegations do not fall within the “imminent danger” exception to the three-strikes rule. 28 U.S.C. § 1915(g). 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). 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 Services, 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 that which applies to 3 Case 1:20-cv-00434-PLM-RSK ECF No. 5 filed 05/29/20 PageID.68 Page 4 of 5 prisoner complaints. Id. Consequently, a prisoner must allege facts in the complaint from which the 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 alleges that he suffers from back problems. Plaintiff’s back problems have been the subject of several of his prior lawsuits. In this suit, Plaintiff complains that he was on medical lay-in from his job in the bakery because he reinjured his back while working. Defendant M. Brown, director of the food department, moved Plaintiff from the bakery to the serving line to in an attempt to accommodate Plaintiff’s limited ability to bend and lift. Plaintiff indicated that standing in one place, as required by serving line work, would not be feasible. Plaintiff indicated that he thought a position in “produce” might work. Brown indicated he would offer such a position to Plaintiff if it came available. Plaintiff claims positions have come available, but Brown has not offered them to Plaintiff. Plaintiff claims he complained to Defendant B. Dixon-Ingalls, facility business manager. To accommodate Plaintiff’s limitation, she directed that Plaintiff be changed to one shift with few hours. She then told Plaintiff to inform Brown of his medical restrictions so Brown could identify a position for Plaintiff that could accommodate those restrictions. Plaintiff then complained to Defendant D. Stewart, deputy warden. As a superior to Brown and Dixon-Ingalls, Plaintiff contends the Stewart could have ordered the other defendants to place Plaintiff in a position to accommodate his needs. Plaintiff does not contend that he is being forced to work when he is physically unable to do so; rather, he complains that Defendants will not put him in the position he wants in “produce.” Absent that placement, Plaintiff contends he is imminent danger of serious physical injury. 4 Case 1:20-cv-00434-PLM-RSK ECF No. 5 filed 05/29/20 PageID.69 Page 5 of 5 Plaintiff’s allegations do not show that Defendants are in some way responsible for a failure to treat Plaintiff, nor do they show that Defendants are unwilling to accommodate Plaintiff’s limitations. To the contrary, Plaintiff’s allegations make clear that Defendants have attempted to accommodate Plaintiff’s limitations, he simply would prefer that they accommodate those limitations by putting him in a different job. Such allegations do not indicate that Plaintiff is in imminent danger of serious physical injury. Therefore, § 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 screen his complaint as required by 28 U.S.C. § 1915A and 42 U.S.C. § 1997e(c). If Plaintiff does not pay the filing fee within the 28-day period, this case will be dismissed without prejudice, but Plaintiff will continue to be responsible for payment of the $400.00 filing fee. Dated: May 29, 2020 /s/ Paul L. Maloney Paul L. Maloney United States District Judge SEND REMITTANCES TO THE FOLLOWING ADDRESS: Clerk, U.S. District Court 399 Federal Bldg. 110 Michigan St., N.W. 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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