Lewis #225473 v. Pramstaller et al, No. 2:2013cv00262 - Document 3 (W.D. Mich. 2013)
Court Description: OPINION Denying Leave to Proceed In Forma Pauperis - Three Strikes ; signed by Judge R. Allan Edgar (Judge R. Allan Edgar, cam)
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UNITED STATES OF AMERICA UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MICHIGAN NORTHERN DIVISION ROGER LEWIS, Plaintiff, Case No. 2:13-cv-262 v. Honorable R. Allan Edgar G. J. PRAMSTALLER, et al., Defendants. ____________________________________/ OPINION DENYING LEAVE TO PROCEED IN FORMA PAUPERIS - THREE STRIKES Plaintiff Roger Lewis #225473, a prisoner incarcerated at Baraga Maximum 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 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 -2- 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. This Court has dismissed three of his actions for failure to state a claim. See Lewis v. DeBlock, No. 1:02-cv-195 (W.D. Mich. May 1, 2002); Lewis v. Kissau et al., No. 1:03-cv-347 (W.D. Mich. July 9, 2003); Lewis v. Guinn et al., No. 2:05-cv-287 (W.D. Mich. Mar. 6, 2006). The Court has also denied Plaintiff leave to proceed in forma pauperis under the three-strikes rule. See Lewis v. Pramstaller, 2:12-cv-124 (W.D. Mich. May 29, 2012): Lewis v. Embry et al., 1:07-cv-258 (W.D. Mich. Apr. 5, 2007). 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). In his thirty-eight page complaint, Plaintiff argues that prison officials have not treated several of his physical ailments, repeating many of the allegations set forth in his complaint in Lewis v. Pramstaller, 2:12-cv-124 (W.D. Mich. May 29, 2012). Plaintiff alleges that he suffers from cervical and lumbar spondylosis, cervical radiculopathy, and cervical stenosis from bone growth and disk degeneration. Plaintiff states that the arthritis in his joints causes excruciating pain and reduced mobility. Plaintiff further complains of constipation, headaches, eczema and alligator skin disease, and sexually transmitted warts. Plaintiff alleges that he is suffering from respiratory difficulties, as well as from episodes of nausea, sweating, vertigo and vomiting which cause him to feel as if he is suffering a heart attack. Finally, Plaintiff states that he -3- experiences a hyperactive bladder and weak kidneys from all his ailments. Plaintiff asserts that the palliative treatments prescribed for him do not adequately address his medical problems. Plaintiff states that Defendants refused to freeze off a wart or to provide him with surgery for his cervical deformities. 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 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)). -4- 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). 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 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 s allegations concern chronic medical problems, for which Plaintiff concedes that he is receiving treatment, but that the treatment is inadequate. Plaintiff s claims regarding eczema, skin dryness and rash, constipation, and hyperactive bladder and weak kidneys fall far short of the seriousness of physical injury contemplated by the imminent-danger exception. Moreover, there is no indication that Plaintiff s remaining ailments of respiratory difficulties, arthritis, cervical spondylosis, cervical radiculopathy and cervical stenosis present the sort of conditions that threaten -5- serious harm or death found in Ibrahim, Brown, Ciarpaglini, and McAlphin. Clearly not every physical pain or discomfort experienced by a prisoner presents an imminent threat of serious physical injury. In addition, it is clear from Plaintiff s allegations that he has been seen regularly by medical personnel and prison officials have monitored Plaintiff s medical concerns through X-rays. Plaintiff states in his complaint that he has been seen by rheumatologist and that his cervical and joint problems were monitored by x-rays. While Plaintiff may not be entirely satisfied with the efficacy of the treatments, his ailments have not gone untreated and are not sufficiently dangerous or impairing to constitute serious physical injury as other courts have defined it. For the foregoing reasons, therefore, Plaintiff s allegations do not satisfy the imminent-danger exception to the threestrikes rule. 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 $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 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: 9/3/2013 /s/ R. Allan Edgar R. Allan Edgar 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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