Cary v. Doe

Filing 7

OPINION and ORDER Dismissing Plaintiff's 1 Complaint Without Prejudice and Denying Leave to Proceed In Forma Pauperis on Appeal. Signed by District Judge Thomas L. Ludington. (KWin)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
NORTHERN DIVISION
BRYAN ALLEN CARY,
Plaintiff,
v.

Case Number: 1:23-cv-13270
Honorable Thomas L. Ludington
United States District Judge

JOHN DOE and JOHN DOE,
Defendants.
_______________________________________/
OPINION AND ORDER DISMISSING PLAINTIFF’S COMPLAINT WITHOUT
PREJUDICE AND DENYING LEAVE TO PROCEED IN FORMA PAUPERIS ON
APPEAL
On December 19, 2023, Plaintiff Bryan Allen Cary—while confined at the Gus Harrison
Correctional Facility in Adrian, Michigan—filed a one-page pro se Complaint alleging two
unidentified medical employees at the Woodland Center Correctional Facility in Whitmore Lake,
Michigan deprived him of his Eighth Amendment rights in violation of 42 U.S.C. § 1983. ECF
No. 1. Specifically, Plaintiff alleges that, in October and November 2023, he filed several
“kites”1 complaining of various medical problems—including a brain cyst, a torn hamstring, a
torn rotator cuff, pain from a broken thumb, headaches, and dizziness—but “no treatment was
given.” Id. at PageID.2. Simultaneous to filing his Complaint, Plaintiff filed a motion to proceed
in forma pauperis. ECF No. 2; see also ECF No. 1-1 at PageID.5. Upon review of the Complaint
and Plaintiff’s litigation history in the federal courts, this Court concludes that Plaintiff’s
Complaint must be dismissed without prejudice under 28 U.S.C. § 1915(g).

1

“Kites are internal mail prisoners can send to prison [employees and] officials” to “express
grievances.” McCracken v. Haas, 324 F. Supp. 3d 939, 943, n. 1 (E.D. Mich. 2018).

Under the Prisoner Litigation Reform Act of 1995 (PLRA), a prisoner may not proceed in
forma pauperis if, on three or more previous occasions, a federal court has dismissed earlier
complaints filed by the prisoner for frivolity, maliciousness, or failing to state a claim upon
which relief may be granted. 28 U.S.C. § 1915(g). The statute provides a narrow exception to
this “three-strikes rule” only when the prisoner is “under imminent danger of serious physical
injury.” Id.
Federal courts have dismissed at least three of Plaintiff’s prior complaints for frivolity,
maliciousness, or failure to state a claim. See, e.g., Cary v. Losacco, No. 18-cv-11396, 2018 WL
9810849 (E.D. Mich. July 11, 2018) (denying Plaintiff’s pro se complaint because it did not
“contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its
face”); Cary v. McCaul, No. 18-cv-00652, 2018 WL 3867516 (W.D. Mich. Aug. 15, 2018)
(denying Plaintiff’s pro se retaliation complaint because he “utterly fail[ed] to allege that the
inmates for whom he wrote grievances would otherwise be unable to seek redress” such that he
did “not show that he was engaged in protected conduct”); Cary v. Eaton, No. 11-cv-13151,
2011 WL 4916676 (E.D. Mich. Oct. 17, 2011) (denying Plaintiff’s pro se complaint for failing to
state First and Fourteenth Amendment claims upon which relief could be granted). Indeed,
federal Courts have dismissed several of Plaintiff’s prior pro se complaints under the PLRA’s
three-strikes rule. See, e.g., Cary v. Farris, No. 22-12136, 2022 WL 10145635 (E.D. Mich. Oct.
17, 2022); Cary v. Loxton, No. 2:22-CV-10854, 2022 WL 1670101 (E.D. Mich. May 25, 2022);
Cary v. Dalton, No. 1:21-CV-13047, 2022 WL 125528 (E.D. Mich. Jan. 12, 2022); Cary v. Ali,
No. 2:21-CV-13044, 2022 WL 71776 (E.D. Mich. Jan. 6, 2022); Cary v. Allen, No. 2:21-CV10415-TGB, 2021 WL 1165498 (E.D. Mich. Mar. 26, 2021); Cary v. Pavitt, No. 2:19-CV13397, 2019 WL 7020352 (E.D. Mich. Dec. 20, 2019); Cary v. Peterson, No. 2:19-CV-13393,

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2019 WL 6339843 (E.D. Mich. Nov. 27, 2019); Cary v. Board, No. 19-CV-12634, 2019 WL
10754111 (E.D. Mich. Nov. 18, 2019).
Although Plaintiff’s instant pro se Complaint could plausibly be construed as
complaining of “past dangers” that occurred during his confinement at the Woodland Center
Correctional Facility, these allegations are “insufficient to invoke” the three-strikes rule’s
imminent danger exception. Taylor v. First Med. Mgmt., 508 F. App’x 488, 492 (6th Cir. 2012).
So, Plaintiff’s Complaint will be dismissed under the PLRA’s three-strikes rule. And, because
this Court concludes an appeal would not be taken in good faith, Plaintiff will be denied leave to
proceed in forma pauperis on appeal. 28 U.S.C. § 1915(a)(3).
Accordingly, it is ORDERED that Plaintiff’s Complaint, ECF No. 1, is DISMISSED
WITHOUT PREJUDICE, to the extent he wishes to re-file the case and pay the required filing
fees.
Further, it is ORDERED that Plaintiff’s Motion to Proceed In Forma Pauperis, ECF No.
2, is DENIED AS MOOT.
Further, it is ORDERED that Plaintiff is DENIED leave to proceed in forma pauperis on
appeal.
Dated: October 25, 2024

s/Thomas L. Ludington
THOMAS L. LUDINGTON
United States District Judge

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