Crump v. Morey et al

Filing 41

ORDER Adopting 38 & 28 Report and Recommendation Granting (as far as Revoking IFP Status) 29 Motion to Dismiss filed by Corizon Health, Inc. AND 37 Motion for Order filed by Larry McMillan; 20 Motion for Order filed by Jenny Engst rom, 18 Motion for Order filed by Kelly Holden AND 16 Motion for Order filed by Richard Cady, Haynes-Love, Richard Russell, A Holmes, Funches, Timothy Morey, Joe Barrett, Joel Salinas, Jeffery Stieve, Daniel Heyns, Debra Scutt; AND Denying 14 Motion for Leave to File filed by Horace Crump, Denying 12 Motion for Preliminary Injunction, Motion for TRO filed by Horace Crump and ORDERING Plaintiff to tender the Entire Filing Fee within 14 days of Entry or Complaint will be dismissed. Signed by District Judge Paul D. Borman. (DTof)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
HORACE CRUMP,
Plaintiff,
Case No. 12-cv-13133
v.
Paul D. Borman
United States District Judge
TIMOTHY MOREY, et al.,
Laurie J. Michelson
United States Magistrate Judge

Defendants.
_____________________________/

OPINION AND ORDER
(1) ADOPTING THE MAGISTRATE JUDGE’S OCTOBER 31, 2012 REPORT AND
RECOMMENDATION TO GRANT DEFENDANTS’ MOTIONS TO REVOKE
PLAINTIFF’S IN FORMA PAUPERIS STATUS AND ORDER TO DENY MOTIONS TO
STRIKE (Dkt. No. 28),
(2) ADOPTING THE MAGISTRATE JUDGE’S JUNE 13, 2013 REPORT AND
RECOMMENDATION TO GRANT ADDITIONAL DEFENDANTS’ MOTIONS TO
REVOKE PLAINTIFF’S IN FORMA PAUPERIS STATUS AND, AS A RESULT, TO
DENY PLAINTIFF’S MOTIONS FOR PRELIMINARY INJUNCTION, TO AMEND
THE COMPLAINT, AND FOR SANCTIONS (Dkt. No. 38),
(3) DENYING PLAINTIFF’S OBJECTIONS (Dkt. No. 31 and 39), and
(4) ORDERING THAT PLAINTIFF MUST TENDER THE ENTIRE FILING FEE TO
THE CLERK OF THE COURT WITHIN 14 DAYS OF ENTRY OF THIS OPINION AND
ORDER OR THE COMPLAINT WILL BE DISMISSED
Before the Court are two Report and Recommendations filed by United States Magistrate
Judge Laurie J. Michelson on October 31, 2012 (Dkt. No. 28) and June 13, 2013 (Dkt. No. 38), as
well as Plaintiff Horace Crump’s Objections to both Report and Recommendations (Dkt Nos. 31 and
39). For the reasons stated below, the Court will:
(1) ADOPT the Magistrate Judge’s October 31, 2012 Report and Recommendation (Dkt. No.
28);

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(2) DENY Plaintiff’s Objections (Dkt. No. 31);
(3) ADOPT the Magistrate Judge’s June 13, 2013 Report and Recommendation (Dkt. No.
38);
(4) DENY Plaintiff’s Objections (Dkt. No. 39), and
(5) ORDER that Plaintiff must tender the entire filing fee to the Clerk of the Court within
14 days of the date of this Opinion and Order. If Plaintiff fails to do so, the Complaint will be
dismissed.
I. BACKGROUND
The Court adopts in full the facts as set forth in the Magistrate Judge’s October 31, 2012,
Report and Recommendation at pages 2-3, and June 13, 2013, Report and Recommendation at pages
2-3.
II. STANDARD OF REVIEW
After a magistrate judge enters a report and recommendation on a dispositive matter in a
case, a party may “file specific written objections to the proposed findings and recommendations.”
Fed. R. Civ. P. 72(b)(2). A party’s objections to a Magistrate Judge’s report and recommendation
are reviewed pursuant to Federal Rule of Civil Procedure 72(b)(3). This rule provides:
The district judge must determine de novo any part of the magistrate
judge’s disposition that has been properly objected to. The district
judge may accept, reject, or modify the recommended disposition;
receive further evidence; or return the matter to the magistrate judge
with instructions.
Fed. R. Civ. P. 72(b)(3).
III. ANALYSIS
The Magistrate Judge recommends granting the Defendants’ motions to revoke Plaintiff’s

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in forma pauperis status under the three strikes law in the Prison Litigation Reform Act (“PLRA”).
This law prohibits a prisoner from bringing a civil action
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 Magistrate Judge noted that Plaintiff had filed two prior cases in the United States
District Court for the Western District of Michigan that count as “strikes” under § 1915(g). See
Crump v. Janz, No. 1:10-cv-583 (W.D. Mich. July 19, 2010) (dismissing case with prejudice “for
failure to state a claim and as frivolous, pursuant to 28 U.S.C. §§ 1915(e) and 1915A, and 42 U.S.C.
§ 1997e(c).”); Crump v. Patrick, et al., No. 1:11-cv-15 (W.D. Mich. Feb. 18, 2011) (dismissing case
with prejudice “for failure to state a claim pursuant to 28 U.S.C. §§ 1915(e) and 1915A, and 42
U.S.C. § 1997e(c).”).
The Magistrate Judge reasoned that Plaintiff’s third “strike” occurred when a case filed in
this District, Crump v. Winn, No. 2:11-cv-10409 (E.D. Mich. Mar. 27, 2011), was dismissed by
Judge George Caram Steeh. Plaintiff objects to this reasoning. Plaintiff argues that, because the
dismissal in Winn was based on a report and recommendation entered by United States Magistrate
Judge R. Steven Whalen, and because Magistrate Judge Whalen granted Plaintiff’s application for
in forma pauperis status in this case,1 the dismissal in Winn should not be considered a “strike.” In

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Although this case was referred to Magistrate Judge Michelson on August 29, 2012
(Dkt. No. 7), Magistrate Judge Whalen entered an Order Waiving Prepayment of the Filing Fee
on September 7, 2012 (Dkt. No. 8.)
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other words, Plaintiff contends that, if Magistrate Judge Whalen intended for the reasoning he used
when recommending dismissal in Winn to align with § 1915(g) of the PLRA, then he would never
have granted Plaintiff’s application for in forma pauperis status in this case.
There is no indication in Judge Whalen’s September 7, 2012 Order Waiving Prepayment of
the Filing Fee that the Magistrate Judge considered the three strikes rule under § 1915(g).
Magistrate Judge Whalen’s September 7, 2012 Order thus has no implications on Magistrate Judge
Michelson’s later Report and Recommendation, which plainly addresses § 1915(g) of the PLRA.
Plaintiff also argues that the reasoning in Magistrate Judge Whalen’s Report and
Recommendation in Winn merely cited 42 U.S.C. § 1997e(c)(2), but did not rely on that statute in
recommending that the defendants’ motions for summary judgment be granted. However, as noted
in Magistrate Judge Michelson’s October 31, 2012, report and recommendation in this case,
Magistrate Judge Whalen recommended dismissal in Winn because Plaintiff Crump’s claims did not
meet the pleading standards of Ashcroft v. Iqbal, 556 U.S. 662 (2009), meaning they failed to state
a claim upon which relief could be granted. (Oct. 31, 2012 Report and Recommendation at 5.)
Failure to state a claim upon which relief may be granted is one of the dismissal methods provided
under § 1997e(c)(2). This type of dismissal is clearly within the three-strikes provision of the
PLRA. See 28 U.S.C. § 1915(g).
Plaintiff argues that the Winn case was dismissed on summary judgment, and therefore
should not be considered a “strike” under the PLRA. As noted above, however, Magistrate Judge
Whalen recommended dismissal in Winn because Plaintiff failed to state a claim upon which relief
could be granted.
Plaintiff asserts that Magistrate Judge Michelson erred because Judge Steeh’s order adopting

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Magistrate Judge Whalen’s report and recommendation in Winn does not state that the case is being
dismissed as frivolous, malicious, or for failure to state a claim. But in dismissing Plaintiff’s claims
in the Winn case, Judge Steeh stated that he was adopting Judge Whalen’s reasoning in the report
and recommendation. Furthermore, in an Order Denying in Part and Granting in Part Plaintiff’s
Motion for Reconsideration, Judge Steeh stated that “the report and recommendation was reviewed
before the court issued an order adopting it and the court finds the report and recommendation
thorough and appropriate.” (Winn, Mar. 25, 2013 Order at 2.) It thus appears that Judge Steeh fully
adopted the reasoning of Magistrate Judge Whalen, which found that Plaintiff failed to state a claim
upon which relief could be granted in Winn.
Plaintiff argues that Magistrate Judge Michelson erred by failing to recognize that, even if
he has used his three strikes under the PLRA, his case is not subject to dismissal because he has
alleged that he is in imminent danger of serious physical harm. Under the imminent danger
exception, “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.” Taylor v. First Medical Management,
508 F. App’x 488, 492 (6th Cir. 2012). The danger must also be “presently existing,” and
“[a]llegations of past dangers are insufficient to invoke the exception.” Id. “Allegations that are
conclusory, ridiculous, or clearly baseless are also insufficient for purposes of the imminent-danger
exception.” Id.
Plaintiff alleges that various allegations in the Complaint show that he is in imminent danger
of serious physical harm. Plaintiff claims that Defendant Morey caused him physical injuries and
told him, “You’ll be lucky to make it out of here alive.” (Compl. ¶ 16.) The injuries Plaintiff
alleges were caused when Defendant Morey ordered Plaintiff to carry a television down several

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flights of stairs, despite Plaintiff’s medical “No Work” order. (Compl. ¶¶ 18-20.) Plaintiff
complains that another prisoner who was also on a medical “No Work” order was not required to
do similar work. (Compl. ¶ 22.) These allegations relate to past dangers, and are not sufficient to
invoke the imminent danger exception.
Plaintiff also alleges that other Defendants recruited prisoners to intimidate and harass
Plaintiff. (Compl. ¶¶ 30, 65-66.) Plaintiff relies on a case from the United States Court of Federal
Claims, Matthews v. United States, 72 Fed. Cl. 274 (Fed. Cl. 2006). The Matthews Court held that
a prisoner could proceed in forma pauperis, despite having three previous “strikes” under the PLRA,
because his allegations “that prison officials have defamed plaintiff with the result that other
prisoners have threatened him[,]” qualified the plaintiff for the imminent danger exception. Id. at
278. However, the plaintiff in Matthews alleged that the other prisoners were not just “harassing”
and “intimidating” him, but had “acted violently toward plaintiff and continue[d that] behavior.”
Id. Plaintiff in this case has only alleged claims of verbal intimidation by other prisoners. Plaintiff
does not claim that he has been attacked or physically harmed by any inmates. Matthews is thus
distinguishable. Furthermore, Plaintiff’s claims that Defendants encouraged other inmates to
intimidate and harass him are not sufficient to trigger the imminent-danger exception.
Plaintiff also alleges that Defendants are denying and interfering with his requests for pain
medication and accommodations.

(Compl. ¶¶ 153-55.)

Specifically, Plaintiff alleges that

“[Defendant] Corizon has an unwritten policy and custom of routinely denying prisoners with
disabilities, diseases, etc., that are known to cause pain effective pain medication and/or pain
treatment.” (Compl. ¶ 153.) The Court finds that these allegations are conclusory, and are thus
insufficient to trigger the imminent-danger exception.

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IV. CONCLUSION
For the reasons stated above, the Court will:
(1) ADOPT the Magistrate Judge’s October 31, 2012 Report and Recommendation (Dkt.
No. 28);
(2) DENY Plaintiff’s Objections (Dkt. No. 31);
(3) ADOPT the Magistrate Judge’s June 13, 2013 Report and Recommendation (Dkt. No.
38); and
(4) DENY Plaintiff’s Objections (Dkt. No. 39).
Plaintiff’s in forma pauperis status is thus revoked. Plaintiff has 14 days from the date of
this Opinion and Order to tender the entire filing fee to the Clerk of the Court. If he fails to do so,
the Complaint will be dismissed.

IT IS SO ORDERED.

s/Paul D. Borman
PAUL D. BORMAN
UNITED STATES DISTRICT JUDGE
Dated: August 19, 2013
CERTIFICATE OF SERVICE
The undersigned certifies that a copy of the foregoing order was served upon each attorney or party
of record herein by electronic means or first class U.S. mail on August 19, 2013.

s/Deborah Tofil
Case Manager

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