Richards v. Snyder et al

Filing 3

MEMORANDUM OPINION and ORDER DENYING 2 Application to Proceed In Forma Pauperis, and DISMISSING 1 Complaint Under 28 USC 1915(g) Signed by District Judge Avern Cohn. (JOwe)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

KYLE BRANDON RICHARDS,
Plaintiff,
v.

Case No. 12-11046
HON. AVERN COHN

GOVERNOR RICK SNYDER, et. al.
Defendants.
__________________________________/
MEMORANDUM AND ORDER
DENYING APPLICATION TO PROCEED WITHOUT PREPAYMENT OF FEES AND
COSTS (Doc. 2)
AND DISMISSING COMPLAINT UNDER 28 U.S.C. § 1915(g)
I. Introduction
This is a prisoner civil rights case under 42 U.S.C. § 1983. Plaintiff Kyle Brandon
Richards, an inmate at the Bellamy Creek Correctional Facility in Ionia, Michigan has
filed a pro se civil rights complaint, as well as an application to proceed without
prepayment of fees and costs seeking to proceed without prepayment of the $350.00
filing fee for this action.
Plaintiff has named Governor Rick Snyder, the State of Michigan, the Michigan
Department of Corrections, and various individuals. For the reasons that follow,
plaintiff’s application to proceed without prepayment of fees and costs will be denied
and the complaint will be dismissed under 28 U.S.C. § 1915(g).
II. Analysis
A prisoner may be precluded from proceeding without prepayment of the filing

fee in a civil action under certain circumstances. The statute states, in relevant part:
In no event shall a prisoner bring a civil action or appeal a judgment in a civil
action or proceeding under this section, 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). In short, the “three strikes” provision requires a district court to
dismiss a civil case when a prisoner seeks to proceed without prepayment of the filing
fee if, on three or more previous occasions, a federal court has dismissed the prisoner’s
action because it was frivolous, malicious, or failed to state a claim upon which relief
may be granted. Id.; see also Dupree v. Palmer, 284 F.3d 1234, 1236 (11th Cir. 2002)
(holding that “the proper procedure is for the district court to dismiss the complaint
without prejudice when it denies the prisoner leave to proceed in forma pauperis
pursuant to the provisions of § 1915(g)”).
Plaintiff has been a prolific litigator in this district. The district court records show
that plaintiff has filed at least five prior civil actions which have been dismissed as
frivolous and/or for failure to state a claim upon which relief may be granted. See, e.g.,
Richards v. United States, et al., No. 11-CV-15619 (E.D. Mich. Jan. 12, 2012); Richards
v. Fox 2 News, et al., No. 11-CV-15280 (E.D. Mich. Dec. 8, 2011); Richards v. Smith, et
al., No. 11-CV-10929 (E.D. Mich. May 16, 2011); Richards v. Swartz, et al., No. 10-CV13759 (E.D. Mich. Oct. 14, 2010); Richards v. Schuster, et al., No. 10-CV-10100 (E.D.
Mich. July 8, 2010).
Plaintiff has also filed five separate § 1983 complaints with this district, which
were dismissed under 28 U.S.C. § 1915(g) on the ground that plaintiff had at least three
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prior civil rights complaints which had been dismissed for being frivolous. See, e.g.,
Richards v. Spain, et al., No. 12-CV-10101 (E. D. Mich. Jan. 19, 2012); Richards v.
Snyder, No. 11-CV-12525 (E.D. Mich. Aug. 2, 2011); Richards v. United States, No. 11CV-13069 (E.D. Mich. July 20, 2011); Richards Family Org. v. United States, No. 11CV-12784 (E.D. Mich. July 7, 2011); Richards v. United States, No. 11-12522 (E.D.
Mich. June 20, 2011).
Plaintiff’s litigation history subjects the complaint to dismissal. As the Seventh
Circuit has noted: “An effort to bamboozle the court by seeking permission to proceed
in forma pauperis after a federal judge has held that § 1915(g) applies to a particular
litigant will lead to immediate termination of the suit.” Sloan v. Lesza, 181 F. 3d 857, 859
(7th Cir. 1999). Here, plaintiff has requested in forma pauperis status without revealing
that other judges in this district have previously precluded him from proceeding in forma
pauperis pursuant to § 1915(g).
Moreover, it is clear that plaintiff is a “three-striker” who cannot proceed without
prepayment of the filing fee in this case unless he can demonstrate that he is “under
imminent danger of serious physical injury.” 28 U.S.C. § 1915(g). To fall within this
exception, a prisoner must allege that the threat or prison condition is ‘real and
proximate’ and that the danger of serious physical injury must exist at the time the
complaint is filed. See Rittner v. Kinder, 290 F. App’x 796, 797-98 (6th Cir. 2008) (citing
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)).

Plaintiff is aware of this requirement, as he has stated in the complaint that he is
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unable to prove that he is in imminent danger of serious physical injury. See Complaint
at p. 8. However, he asks that the complaint be served or sent to appropriate
authorities. Indeed, the allegations raised by plaintiff in his complaint do not establish
that he is in imminent danger of serious physical injury. As best as can be gleaned,
plaintiff claims that after being diagnosed with Autism in 2005, several psychiatrists, a
special education academic coordinator at the public school he attended, his
stepbrother, and his stepsister have all conspired to subject plaintiff to “illegal
psychological conditioning/programing” and brainwashing. Plaintiff admits that these
psychological sessions have ceased since his incarceration. Plaintiff, however, claims
that he is still receiving unspecified threats from unnamed corrections officers in prison.
These allegations fail to show that there is any imminent danger of serious physical
injury that is contemporaneous with the filing of this complaint. As such, plaintiff is not
entitled to proceed in forma pauperis.
III. Conclusion
For the reasons stated above, plaintiff’s application to proceed without
prepayment of fees or costs is DENIED. The complaint is DISMISSED under 28 U.S.C.
§ 1915(g). This dismissal is without prejudice to the filing of a new complaint with
payment of the $350.00 filing fee. The Court notes that any such complaint will be
reviewed to determine whether it should be served upon the defendants or summarily
dismissed pursuant to 28 U.S.C. § 1915A(b), which requires the Court to dismiss a
complaint brought against governmental entities, officers, and employees if the
complaint is “frivolous, malicious, or fails to state a claim upon which relief may be
granted.”
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Finally, the Court CERTIFIES that any appeal from this order would be frivolous
and, therefore, cannot be taken in good faith. See 28 U.S.C. § 1915(a)(3); McGore v.
Wrigglesworth, 114 F.3d 601, 610-11 (6th Cir. 1997).
SO ORDERED.
S/Avern Cohn
AVERN COHN
UNITED STATES DISTRICT JUDGE

Dated: April 18, 2012

I hereby certify that a copy of the foregoing document was mailed to the attorneys of
record on this date, April 18, 2012, by electronic and/or ordinary mail.

S/Julie Owens
Case Manager, [phone]

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