Simpson #495893 v. Santimaw et al, No. 2:2023cv00152 - Document 7 (W.D. Mich. 2023)

Court Description: OPINION; signed by Magistrate Judge Maarten Vermaat (cam)

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Simpson &#035;495893 v. Santimaw et al Doc. 7 Case 2:23-cv-00152-MV ECF No. 7, PageID.27 Filed 09/25/23 Page 1 of 13 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF MICHIGAN NORTHERN DIVISION ______ ANTOINE JAMAR SIMPSON, Plaintiff, Case No. 2:23-cv-152 v. Honorable Maarten Vermaat UNKNOWN SANTIMAW et al., Defendants. ____________________________/ OPINION This is a civil rights action brought by a state prisoner under 42 U.S.C. § 1983. The Court has granted Plaintiff leave to proceed in forma pauperis in a separate order. Pursuant to 28 U.S.C. § 636(c) and Rule 73 of the Federal Rules of Civil Procedure, Plaintiff consented to proceed in all matters in this action under the jurisdiction of a United States magistrate judge. (ECF No. 1, PageID.5.) This case is presently before the Court for preliminary review under the Prison Litigation Reform Act, Pub. L. No. 104-134, 110 Stat. 1321 (1996) (PLRA), pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A(b), and 42 U.S.C. § 1997e(c). The Court is required to conduct this initial review prior to the service of the complaint. See In re Prison Litig. Reform Act, 105 F.3d 1131, 1131, 1134 (6th Cir. 1997); McGore v. Wrigglesworth, 114 F.3d 601, 604–05 (6th Cir. 1997). Service of the complaint on the named defendants is of particular significance in defining a putative defendant’s relationship to the proceedings. “An individual or entity named as a defendant is not obliged to engage in litigation unless notified of the action, and brought under a court’s authority, by formal process.” Murphy Bros., Dockets.Justia.com Case 2:23-cv-00152-MV ECF No. 7, PageID.28 Filed 09/25/23 Page 2 of 13 Inc. v. Michetti Pipe Stringing, Inc., 526 U.S. 344, 347 (1999). “Service of process, under longstanding tradition in our system of justice, is fundamental to any procedural imposition on a named defendant.” Id. at 350. “[O]ne becomes a party officially, and is required to take action in that capacity, only upon service of a summons or other authority-asserting measure stating the time within which the party served must appear and defend.” Id. (citations omitted). That is, “[u]nless a named defendant agrees to waive service, the summons continues to function as the sine qua non directing an individual or entity to participate in a civil action or forgo procedural or substantive rights.” Id. at 351. Therefore, the PLRA, by requiring courts to review and even resolve a plaintiff’s claims before service, creates a circumstance where there may only be one party to the proceeding—the plaintiff—at the district court level and on appeal. See, e.g., Conway v. Fayette Cnty. Gov’t, 212 F. App’x 418 (6th Cir. 2007) (“Pursuant to 28 U.S.C. § 1915A, the district court screened the complaint and dismissed it without prejudice before service was made upon any of the defendants . . . [such that] . . . only [the plaintiff] [wa]s a party to this appeal.”). Here, Plaintiff has consented to a United States magistrate judge conducting all proceedings in this case under 28 U.S.C. § 636(c). That statute provides that “[u]pon the consent of the parties, a full-time United States magistrate judge . . . may conduct any or all proceedings . . . and order the entry of judgment in the case . . . .” 28 U.S.C. § 636(c). Because the named Defendants have not yet been served, the undersigned concludes that they are not presently parties whose consent is required to permit the undersigned to conduct a preliminary review under the PLRA, in the same way they are not parties who will be served with or given notice of this opinion. See Neals v. Norwood, 59 F.3d 530, 532 (5th Cir. 1995) (“The record does not contain a 2 Case 2:23-cv-00152-MV ECF No. 7, PageID.29 Filed 09/25/23 Page 3 of 13 consent from the defendants[; h]owever, because they had not been served, they were not parties to this action at the time the magistrate entered judgment.”).1 Under the PLRA, the Court is required to dismiss any prisoner action brought under federal law if the complaint is frivolous, malicious, fails to state a claim upon which relief can be granted, or seeks monetary relief from a defendant immune from such relief. 28 U.S.C. §§ 1915(e)(2), 1915A; 42 U.S.C. § 1997e(c). The Court must read Plaintiff’s pro se complaint indulgently, see Haines v. Kerner, 404 U.S. 519, 520 (1972), and accept Plaintiff’s allegations as true, unless they are clearly irrational or wholly incredible. Denton v. Hernandez, 504 U.S. 25, 33 (1992). Applying these standards, the Court will dismiss Plaintiff’s complaint for failure to state a claim. Additionally, the Court will deny Plaintiff’s motion for appointment of counsel. (ECF No. 4.) Discussion Factual Allegations Plaintiff is presently incarcerated with the Michigan Department of Corrections (MDOC) at the Newberry Correctional Facility (NCF) in Newberry, Luce County, Michigan. The events about which he complains occurred at that facility. Plaintiff sues the following NCF officials: Lieutenant Unknown Santimaw, Hearing Investigator/Grievance Coordinator A. Marshall, and Warden D. Curley. (Compl., ECF No. 1, PageID.2.) But see Coleman v. Lab. & Indus. Rev. Comm’n of Wis., 860 F.3d 461, 471 (7th Cir. 2017) (concluding that, when determining which parties are required to consent to proceed before a United States magistrate judge under 28 U.S.C. § 636(c), “context matters” and the context the United States Supreme Court considered in Murphy Bros. was nothing like the context of a screening dismissal pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A(b), and 42 U.S.C. § 1997e(c)); Williams v. King, 875 F.3d 500, 503–04 (9th Cir. 2017) (relying on Black’s Law Dictionary for the definition of “parties” and not addressing Murphy Bros.); Burton v. Schamp, 25 F.4th 198, 207 n.26 (3d Cir. 2022) (premising its discussion of “the term ‘parties’ solely in relation to its meaning in Section 636(c)(1), and . . . not tak[ing] an opinion on the meaning of ‘parties’ in other contexts”). 1 3 Case 2:23-cv-00152-MV ECF No. 7, PageID.30 Filed 09/25/23 Page 4 of 13 In Plaintiff’s complaint, he alleges that on April 18, 2023, Defendant Santimaw “conducted a class two and class three misconduct hearing for theft and contraband without allowing Plaintiff . . . the opportunity for a disciplinary hearing or to be present during the hearing.”2 (Id., PageID.3.) Plaintiff claims that this “is common practice at NCF.” (Id.) Subsequently, on April 24, 2023, Plaintiff filed a step I grievance “alleging that he was denied his Fourteenth Amendment due process right when Defendant Santimaw found him guilty of a class two and three misconduct without providing him an opportunity for a hearing or to be present during the hearing.” (Id.) Plaintiff states that “he did not refuse a disciplinary hearing at any time or to be present during the hearing.” (Id.) On May 4, 2023, Defendant Marshall denied Plaintiff’s step I grievance, explaining that Plaintiff’s grievance “raise[d] issues directly related to the hearing process.” (Id.) Plaintiff states that Defendant Marshall “is the hearing investigator at [NCF] as well as the grievance coordinator.” (Id.) Plaintiff contends that by responding to Plaintiff’s step I grievance, Defendant Marshall “acquies[c]ed in unconstitutional conduct committed by Defendant Santimaw.” (Id.) On May 22, 2023, Plaintiff filed a step II grievance about his misconduct charges. (Id., PageID.4.) Defendant Curley responded to the step II grievance on June 7, 2023, upholding the step I grievance rejection. (Id.) Plaintiff contends that by upholding the step I rejection, Defendant Curley “was put on notice that Plaintiff’s due process rights were being violated and Defendant Curley failed to investigate this matter and acquiesced in the unconstitutional conduct committed by Defendant Santimaw.” (Id.) Thereafter, on June 15, 2023, Plaintiff filed a step III grievance, and this grievance was denied on July 10, 2023. 2 The Court corrects the capitalization in quotations from Plaintiff’s filings. 4 Case 2:23-cv-00152-MV ECF No. 7, PageID.31 Filed 09/25/23 Page 5 of 13 Based on the foregoing, Plaintiff avers that Defendants violated his Fourteenth Amendment right to due process as related to his class II and class III misconduct charges. The Court also construes Plaintiff’s complaint to raise a Fourteenth Amendment Due Process Clause claim regarding the responses to his grievances, as well as a § 1983 conspiracy claim. (See id., PageID.3 (alleging that Defendants Santimaw, Marshall, and Curley “conspired . . . to deprive Plaintiff . . . of his Fourteenth Amendment due process right to a disciplinary hearing and to be present during the hearing” for class II and class III misconduct charges).) As relief, Plaintiff seeks compensatory and punitive damages. (Id., PageID.5.) Motion for Appointment of Counsel Plaintiff has filed a motion requesting the appointment of counsel. (ECF No. 4.) Indigent parties in civil cases have no constitutional right to a court-appointed attorney. Abdur-Rahman v. Mich. Dep’t of Corr., 65 F.3d 489, 492 (6th Cir. 1995); Lavado v. Keohane, 992 F.2d 601, 604– 05 (6th Cir. 1993). The Court may, however, request an attorney to serve as counsel, in the Court’s discretion. Abdur-Rahman, 65 F.3d at 492; Lavado, 992 F.2d at 604–05; see Mallard v. U.S. Dist. Ct., 490 U.S. 296 (1989). Appointment of counsel is a privilege that is justified only in exceptional circumstances. In determining whether to exercise its discretion, the Court should consider the complexity of the issues, the procedural posture of the case, and Plaintiff’s apparent ability to prosecute the action without the help of counsel. See Lavado, 992 F.2d at 606. The Court has carefully considered these factors and has determined that the assistance of counsel is not necessary to the proper presentation of Plaintiff’s position. Plaintiff’s motion for appointment of counsel (ECF No. 4) therefore will be denied. 5 Case 2:23-cv-00152-MV ECF No. 7, PageID.32 Filed 09/25/23 Page 6 of 13 Failure to State a Claim A complaint may be dismissed for failure to state a claim if it fails “to give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). While a complaint need not contain detailed factual allegations, a plaintiff’s allegations must include more than labels and conclusions. Id.; Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The court must determine whether the complaint contains “enough facts to state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570. “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 679. Although the plausibility standard is not equivalent to a “‘probability requirement,’ . . . it asks for more than a sheer possibility that a defendant has acted unlawfully.” Id. at 678 (quoting Twombly, 550 U.S. at 556). “[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged—but it has not ‘show[n]’—that the pleader is entitled to relief.” Id. at 679 (quoting Fed. R. Civ. P. 8(a)(2)); see also Hill v. Lappin, 630 F.3d 468, 470–71 (6th Cir. 2010) (holding that the Twombly/Iqbal plausibility standard applies to dismissals of prisoner cases on initial review under 28 U.S.C. §§ 1915A(b)(1) and 1915(e)(2)(B)(ii)). To state a claim under 42 U.S.C. § 1983, a plaintiff must allege the violation of a right secured by the federal Constitution or laws and must show that the deprivation was committed by a person acting under color of state law. West v. Atkins, 487 U.S. 42, 48 (1988); Street v. Corr. Corp. of Am., 102 F.3d 810, 814 (6th Cir. 1996). Because § 1983 is a method for vindicating federal rights, not a source of substantive rights itself, the first step in an action under § 1983 is to identify the specific constitutional right allegedly infringed. Albright v. Oliver, 510 U.S. 266, 271 (1994). 6 Case 2:23-cv-00152-MV ECF No. 7, PageID.33 Filed 09/25/23 Page 7 of 13 A. Fourteenth Amendment Due Process Clause Claims “The Fourteenth Amendment protects an individual from deprivation of life, liberty or property, without due process of law.” Bazzetta v. McGinnis, 430 F.3d 795, 801 (6th Cir. 2005). To establish a Fourteenth Amendment procedural due process violation, a plaintiff must show that one of these interests is at stake. Wilkinson v. Austin, 545 U.S. 209, 221 (2005). Analysis of a procedural due process claim involves two steps: “[T]he first asks whether there exists a liberty or property interest which has been interfered with by the State; the second examines whether the procedures attendant upon that deprivation were constitutionally sufficient . . . .” Ky. Dep’t of Corr. v. Thompson, 490 U.S. 454, 460 (1989) (citations omitted). 1. Class II and Class III Misconduct Charges Plaintiff contends that Defendants violated his Fourteenth Amendment due process rights because Defendant Santimaw “conducted a class two and class three misconduct hearing for theft and contraband without allowing Plaintiff . . . the opportunity for a disciplinary hearing or to be present during the hearing.” (Compl., ECF No. 1, PageID.3.) A prisoner does not have a protected liberty interest in prison disciplinary proceedings unless the sanction “will inevitably affect the duration of his sentence” or the resulting restraint imposes an “atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life.” See Sandin v. Conner, 515 U.S. 472, 484, 487 (1995). Under MDOC Policy Directive 03.03.105 ¶ C (eff. Apr. 18, 2022), a class I misconduct is a “major” misconduct and class II and III misconducts are “minor” misconducts. The policy further provides that prisoners are deprived of good time or disciplinary credits only when they are found guilty of a class I misconduct. Id. ¶ DDDD. Here, Plaintiff states that he was found guilty of the class II and class III misconduct charges; Plaintiff does not indicate what sanctions, if any, that he received. (Compl., ECF No. 1, 7 Case 2:23-cv-00152-MV ECF No. 7, PageID.34 Filed 09/25/23 Page 8 of 13 PageID.3.) Although Plaintiff does not indicate what sanction he received as a result of his class II and III misconduct convictions, Plaintiff could not have been denied good time or disciplinary credits as a result of his class II and III misconduct convictions. See MDOC Policy Directive 03.03.105 ¶ DDDD (eff. Apr. 18, 2022). The United States Court of Appeals for the Sixth Circuit routinely has held that misconduct convictions that do not result in the loss of good time are not atypical and significant deprivations and therefore do not implicate due process. See, e.g., Ingram v. Jewell, 94 F. App’x 271, 273 (6th Cir. 2004), overruled on other grounds by Maben v. Thelen, 887 F.3d 252 (6th Cir. 2018); Carter v. Tucker, 69 F. App’x 678, 680 (6th Cir. 2003); Green v. Waldren, No. 99-1561, 2000 WL 876765, at *2 (6th Cir. June 23, 2000); Staffney v. Allen, No. 981880, 1999 WL 617967, at *2 (6th Cir. Aug. 12, 1999). Moreover, Plaintiff alleges no facts to indicate that any sanctions that he received for his class II and III misconduct convictions constituted an “atypical and significant” deprivation under Sandin, 515 U.S. at 484.3 Accordingly, for all of the foregoing reasons, Plaintiff fails to state a Fourteenth Amendment due process claim regarding his class II and III misconduct convictions. For example, if Plaintiff received “loss of privileges” for a period of time as a sanction, pursuant to MDOC Policy Directive 03.03.105, this would have involved the loss of various privileges, such as access to the day room, exercise facilities, group meetings, “[o]ut of cell hobbycraft activities,” the kitchen area, the general library (not including the law library), movies, music practice, and other “[l]eisure time activities.” MDOC Policy Directive 03.03.105, Attach. E (eff. Apr. 18, 2022). Federal courts consistently have found that prisoners have no constitutionally protected liberty interest in prison vocational, rehabilitation, and educational programs or activities under the Fourteenth Amendment. See, e.g., Moody v. Daggett, 429 U.S. 78, 88 n.9 (1976) (holding that the Due Process Clause was not implicated by prisoner classification and eligibility for rehabilitative programs, even where inmate suffers “grievous loss”); Argue v. Hofmeyer, 80 F. App’x 427, 429 (6th Cir. 2003) (finding that prisoners have no constitutional right to rehabilitation, education or jobs); Canterino v. Wilson, 869 F.2d 948, 952–54 (6th Cir. 1989) (concluding that prisoners have no constitutional right to rehabilitation). 3 8 Case 2:23-cv-00152-MV ECF No. 7, PageID.35 Filed 09/25/23 Page 9 of 13 2. Grievance Responses The Court construes Plaintiff’s complaint to raise a due process claim regarding Defendants’ responses to his grievances. The courts repeatedly have held that there exists no constitutionally protected due process right to an effective prison grievance procedure. See Hewitt v. Helms, 459 U.S. 460, 467 (1983); Walker v. Mich. Dep’t of Corr., 128 F. App’x 441, 445 (6th Cir. 2005); Argue v. Hofmeyer, 80 F. App’x 427, 430 (6th Cir. 2003); Young v. Gundy, 30 F. App’x 568, 569–70 (6th Cir. 2002); see also Antonelli v. Sheahan, 81 F.3d 1422, 1430 (7th Cir. 1996); Adams v. Rice, 40 F.3d 72, 75 (4th Cir. 1994) (collecting cases). And, Michigan law does not create a liberty interest in the grievance procedure. See Olim v. Wakinekona, 461 U.S. 238, 249 (1983); Keenan v. Marker, 23 F. App’x 405, 407 (6th Cir. 2001); Wynn v. Wolf, No. 93-2411, 1994 WL 105907, at *1 (6th Cir. Mar. 28, 1994). Moreover, to the extent that Plaintiff seeks to hold Defendants Marshall and Curley liable for the actions of their subordinates, government officials, such as Defendants, may not be held liable for the unconstitutional conduct of their subordinates under a theory of respondeat superior or vicarious liability. Iqbal, 556 U.S. at 676; Monell v. New York City Dep’t of Soc. Servs., 436 U.S. 658, 691(1978); Everson v. Leis, 556 F.3d 484, 495 (6th Cir. 2009). A claimed constitutional violation must be based upon active unconstitutional behavior. Grinter v. Knight, 532 F.3d 567, 575–76 (6th Cir. 2008); Greene v. Barber, 310 F.3d 889, 899 (6th Cir. 2002). The acts of one’s subordinates are not enough, nor can supervisory liability be based upon the mere failure to act. Grinter, 532 F.3d at 576; Greene, 310 F.3d at 899; Summers v. Leis, 368 F.3d 881, 888 (6th Cir. 2004). Moreover, § 1983 liability may not be imposed simply because a supervisor denied an administrative grievance or failed to act based upon information contained in a grievance. See Shehee v. Luttrell, 199 F.3d 295, 300 (6th Cir. 1999). 9 Case 2:23-cv-00152-MV ECF No. 7, PageID.36 Filed 09/25/23 Page 10 of 13 The Sixth Circuit repeatedly has summarized the minimum required to constitute active conduct by a supervisory official: “[A] supervisory official’s failure to supervise, control or train the offending individual is not actionable unless the supervisor either encouraged the specific incident of misconduct or in some other way directly participated in it.” Shehee, 199 F.3d at 300 (emphasis added) (internal quotation marks omitted). We have interpreted this standard to mean that “at a minimum,” the plaintiff must show that the defendant “at least implicitly authorized, approved, or knowingly acquiesced in the unconstitutional conduct of the offending officers.” Peatross v. City of Memphis, 818 F.3d 233, 242 (6th Cir. 2016) (quoting Shehee v. Luttrell, 199 F.3d 295, 300 (6th Cir. 1999)); see also Copeland v. Machulis, 57 F.3d 476, 481 (6th Cir. 1995)); Walton v. City of Southfield, 995 F.2d 1331, 1340 (6th Cir. 1993). Here, Plaintiff fails to allege any facts showing that Defendants Marshall and Curley encouraged or condoned the conduct of their subordinates, or authorized, approved, or knowingly acquiesced in the conduct. Plaintiff’s vague and conclusory allegations of supervisory responsibility are insufficient to demonstrate that Defendants Marshall and Curley were personally involved in the alleged violations of Plaintiff’s constitutional rights. See Iqbal, 556 U.S. at 678 (“Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.”) Because Plaintiff has failed to allege that Defendants Marshall and Curley engaged in any active unconstitutional behavior, Plaintiff fails to state a claim against them. Accordingly, for the reasons set forth above, Plaintiff fails to state a Fourteenth Amendment due process claim regarding Defendants’ responses to his grievances. B. Section 1983 Conspiracy Claim The Court also construes Plaintiff’s complaint to raise a § 1983 conspiracy claim. Specifically, Plaintiff contends that Defendants Santimaw, Marshall, and Curley “conspired . . . to deprive Plaintiff . . . of his Fourteenth Amendment due process right to a disciplinary hearing and 10 Case 2:23-cv-00152-MV ECF No. 7, PageID.37 Filed 09/25/23 Page 11 of 13 to be present during the hearing” for class II and class III misconduct charges. (Compl., ECF No. 1, PageID.3.) A civil conspiracy under § 1983 is “an agreement between two or more persons to injure another by unlawful action.” See Hensley v. Gassman, 693 F.3d 681, 695 (6th Cir. 2012) (quoting Hooks v. Hooks, 771 F.2d 935, 943–44 (6th Cir. 1985)). The plaintiff must show the existence of a single plan, that the alleged coconspirator shared in the general conspiratorial objective to deprive the plaintiff of a federal right, and that an overt action committed in furtherance of the conspiracy caused an injury to the plaintiff. Id.; Bazzi v. City of Dearborn, 658 F.3d 598, 602 (6th Cir. 2011). Moreover, a plaintiff must plead a conspiracy with particularity, as vague and conclusory allegations unsupported by material facts are insufficient. Twombly, 550 U.S. at 565 (recognizing that allegations of conspiracy must be supported by allegations of fact that support a “plausible suggestion of conspiracy,” not merely a “possible” one); Fieger v. Cox, 524 F.3d 770, 776 (6th Cir. 2008); Spadafore v. Gardner, 330 F.3d 849, 854 (6th Cir. 2003); Gutierrez v. Lynch, 826 F.2d 1534, 1538 (6th Cir. 1987). Here, Plaintiff alleges in a conclusory manner that Defendants “conspired” to deny Plaintiff his due process rights. (Compl., ECF No. 1, PageID.3.) However, Plaintiff’s allegations of conspiracy are wholly conclusory. He alleges no facts that indicate the existence of a plan, much less that any Defendant shared a conspiratorial objective. Plaintiff’s allegations, even viewed in the light most favorable to Plaintiff, indicate that Defendants took discrete actions, which Plaintiff believes violated his constitutional rights. As the United States Supreme Court has held, such allegations, while hinting at a sheer “possibility” of conspiracy, do not contain “enough factual matter (taken as true) to suggest that an agreement was made.” Twombly, 550 U.S. at 556–57. Instead, the Supreme Court has 11 Case 2:23-cv-00152-MV ECF No. 7, PageID.38 Filed 09/25/23 Page 12 of 13 recognized that although parallel conduct may be consistent with an unlawful agreement, it is insufficient to state a claim where that conduct “was not only compatible with, but indeed was more likely explained by, lawful, unchoreographed . . . behavior.” Iqbal, 556 U.S. at 680 (citing Twombly, 550 U.S. at 567). Accordingly, because Plaintiff does not allege facts to show an agreement among Defendants, Plaintiff fails to state a plausible claim of conspiracy against Defendants. Conclusion As set forth above, Plaintiff’s motion for appointment of counsel (ECF No. 4) will be denied. Further, having conducted the review required by the Prison Litigation Reform Act, the Court determines that Plaintiff’s complaint will be dismissed for failure to state a claim under 28 U.S.C. §§ 1915(e)(2) and 1915A(b), and 42 U.S.C. § 1997e(c). The Court must next decide whether an appeal of this action would be in good faith within the meaning of 28 U.S.C. § 1915(a)(3). See McGore v. Wrigglesworth, 114 F.3d 601, 611 (6th Cir. 1997). Although the Court concludes that Plaintiff’s claims are properly dismissed, the Court does not conclude that any issue Plaintiff might raise on appeal would be frivolous. Coppedge v. United States, 369 U.S. 438, 445 (1962). Accordingly, the Court does not certify that an appeal would not be taken in good faith. Should Plaintiff appeal this decision, the Court will assess the $505.00 appellate filing fee pursuant to § 1915(b)(1), see McGore, 114 F.3d at 610–11, unless Plaintiff is 12 Case 2:23-cv-00152-MV ECF No. 7, PageID.39 Filed 09/25/23 Page 13 of 13 barred from proceeding in forma pauperis, e.g., by the “three-strikes” rule of § 1915(g). If he is barred, he will be required to pay the $505.00 appellate filing fee in one lump sum. This is a dismissal as described by 28 U.S.C. § 1915(g). An order and judgment consistent with this opinion will be entered. Dated: /s/Maarten Vermaat Maarten Vermaat United States Magistrate Judge September 25, 2023 13

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