Preston v. Davids et al, No. 1:2023cv00351 - Document 8 (W.D. Mich. 2023)
Court Description: OPINION; signed by Magistrate Judge Ray Kent (fhw)
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Preston v. Davids et al Doc. 8 Case 1:23-cv-00351-RSK ECF No. 8, PageID.5 Filed 04/12/23 Page 1 of 6 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION ______ HARVEY PRESTON, Plaintiff, v. Case No. 1:23-cv-351 Honorable Ray Kent JOHN DAVIDS et al., Defendants. ____________________________/ OPINION This is a civil rights action brought by a state prisoner under 42 U.S.C. § 1983. Plaintiff initiated this action by filing it in the United States District Court for the Eastern District of Michigan. In an order (ECF No. 5) entered on April 5, 2023, that court transferred the matter to this Court for further proceedings. Plaintiff seeks leave to proceed in forma pauperis. (ECF No. 2.) Plaintiff, however, has filed at least three lawsuits that were dismissed as frivolous, malicious, or for failure to state a claim. Because of this, the Court will direct Plaintiff to show cause why he should not be barred from proceeding in forma pauperis under 28 U.S.C. § 1915(g). Alternatively, Plaintiff may pay the $402.00 civil action filing fees applicable to those not permitted to proceed in forma pauperis.1 Plaintiff must either show cause or pay the fee within twenty-eight (28) days of this opinion and accompanying order. If Plaintiff fails to either show cause or pay the fee, the 1 The filing fee for a civil action is $350.00. 28 U.S.C. § 1914(a). The Clerk is also directed to collect a miscellaneous administrative fee of $52.00. 28 U.S.C. § 1914(b); https://www.uscourts. gov/services-forms/fees/district-court-miscellaneous-fee-schedule. The miscellaneous administrative fee, however, “does not apply to applications for a writ of habeas corpus or to persons granted in forma pauperis status under 28 U.S.C. § 1915.” See https://www.uscourts.gov/ services-forms/fees/district-court-miscellaneous-fee-schedule. Dockets.Justia.com Case 1:23-cv-00351-RSK ECF No. 8, PageID.6 Filed 04/12/23 Page 2 of 6 Court will order that this case be dismissed without prejudice. Even if the case is dismissed, Plaintiff must pay the $402.00 filing fees 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 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 2 Case 1:23-cv-00351-RSK ECF No. 8, PageID.7 Filed 04/12/23 Page 3 of 6 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 more than 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 Preston v. White, No. 2:03-cv-249 (W.D. Mich. Jan. 7, 2004); Preston v. Duney, No. 2:03-cv-253 (W.D. Mich. Jan. 6, 2004); Preston v. Burch, No. 1:03-cv-581 (W.D. Mich. Dec. 5, 2003); Preston v. MDOC, No. 1:03-cv-812 (W.D. Mich. Dec. 2, 2003). Plaintiff also has been denied leave to proceed in forma pauperis under the three-strikes rule on numerous occasions. See Preston v. Burgess, No. 1:21-cv-830 (W.D. Mich. Oct. 7, 2021); Preston v. Russell, No. 1:21-cv-312 (W.D. Mich. Apr. 29, 2021); Preston v. Davids, No. 1:18-cv803 (W.D. Mich. Aug. 8, 2018); Preston v. Smith, No. 1:18-cv-84 (W.D. Mich. Feb. 2, 2018); Preston v. U.P. Health Sys., No. 2:16-cv-201 (W.D. Mich. Sept. 30, 2016). Moreover, it does not appear that Plaintiff’s allegations 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. 3 Case 1:23-cv-00351-RSK ECF No. 8, PageID.8 Filed 04/12/23 Page 4 of 6 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 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 is currently incarcerated at the Ionia Correctional Facility (ICF) in Ionia, Ionia County, Michigan. Plaintiff sues Warden John Davids and Assistant Deputy Wardens Unknown Cassell, Unknown Boon, and Unknown Dunigan. Plaintiff’s complaint consists of numerous conclusory statements regarding his conditions of confinement at ICF. Plaintiff avers that his life is in danger because of Security Threat Groups (STGs) and seeks to be placed in protective custody. (ECF No. 1, PageID.7.) He suggests that “[a]t least four individuals are suppose[d] to enter [his] room and kill [him].” (Id.) Plaintiff alleges that staff members pass him by at meal times, and that he has been denied mental health services. (Id.) Plaintiff states that he has talked to Defendants about “discrimination, torture tactics, hatred by staff, oppression, [his] personal safety[, and] cruel and unusual punishment.” (Id.) Plaintiff goes on to allege that he cannot get religious materials, and that he has no access to the law library or legal supplies. (Id.) His property has been lost, and he has “no quartermaster clothes.” (Id.) Plaintiff has been “denied dental, optometry[,] and health care services.” (Id.) Plaintiff also contends that the food trays have been 4 Case 1:23-cv-00351-RSK ECF No. 8, PageID.9 Filed 04/12/23 Page 5 of 6 poisoned, causing him to experience “headaches, tightness in [his] chest, floating specks in [his] eyes, ears ringing, [and] pain in [his] knee [and] foot joints.” (Id.) Most of Plaintiff’s concerns do not implicate any suggestion of imminent danger of serious physical harm. Moreover, although Plaintiff alleges that he has been denied health care services, he does not suggest that he faces any serious physical harm from such denial. Allegations that STGs have threatened to kill Plaintiff and that the food trays have been poisoned certainly suggest a danger. Plaintiff’s complaint, however, simply relies upon conclusory statements to suggest a risk of serious physical harm. The dearth of any factual allegations to support these conclusions leads the Court to conclude that the alleged threats are described with insufficient facts and detail to establish that Plaintiff is in danger of imminent physical injury . . . .” Rittner, 280 F. App’x at 798 (footnote omitted). Based on Plaintiff’s allegations, these risks are not sufficiently “‘real and proximate.’” Vandiver, 727 F.3d at 585 (quoting Rittner). That is not to say that they are “ridiculous . . . baseless . . . fantastic –or delusional . . . irrational or wholly incredible.” Id. They are simply insufficient. In light of such, it appears that § 1915(g) prohibits Plaintiff from proceeding in forma pauperis in this action. The Court will, however, direct Plaintiff to show cause why he should not be barred from proceeding in forma pauperis in this action even though he has accrued “three “strikes” under § 1915(g). Plaintiff has twenty-eight (28) days from the date of entry of this opinion and accompanying order to show cause. Alternatively, Plaintiff may pay the civil action filing fees, which total $402.00, within that time. When Plaintiff either pays the filing fees or sufficiently demonstrates cause to proceed in forma pauperis, 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 show cause or pay the filing 5 Case 1:23-cv-00351-RSK ECF No. 8, PageID.10 Filed 04/12/23 Page 6 of 6 fees within the 28-day period, Plaintiff will be denied leave to proceed in forma pauperis and this case will be dismissed without prejudice. Dated: April 12, 2023 /s/ Ray Kent Ray Kent United States Magistrate 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.” 6
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