Stockenauer v. Ball, et al

Filing 54

ORDER ADOPTING REPORT AND RECOMMENDATION AND REVOKING PLAINTIFFS IN FORMA PAUPERIS STATUS re 23 Motion for Default Judgment filed by Gordon Stockenauer, 12 Motion filed by Gordon Stockenauer, 14 Motion filed by Gordon Stockenauer, 40 R eport and Recommendation,, 27 Motion for Order,, filed by T. Ball, Thomas Holden, Ball. Therefore, Defendants Motion to Revoke In Forma Pauperis Status and to Dismiss is GRANTED. Plaintiffs complaint is DISMISSED WITHOUT PREJUDICE. Further, Plaintiffs Motions to Add Additional Defendants and his Motion for Entry of Default and Default Judgment are DENIED as moot. Signed by District Judge Marianne O. Battani. (KDoa)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

GORDON STOCKENAUER,
Plaintiff,
v.

CASE NO. 14-13865
HON. MARIANNE O. BATTANI

TIMOTHY BALL, et al.,
Defendants.
_____________________________________/

ORDER ADOPTING REPORT AND RECOMMENDATION AND
REVOKING PLAINTIFF’S IN FORMA PAUPERIS STATUS
Plaintiff Gordon Stockenauer, an inmate incarcerated at the Saginaw Regional
Correctional Facility filed this action on October 6, 2014, alleging employees of the
Michigan Department of Corrections (“MDOC”) violated 42 U.S.C. § 1983. On January
8, 2015, the Court referred this matter to Magistrate Judge David R. Grand for all
pretrial proceedings. (See Doc. No. 25).
In a Report and Recommendation (“R&R”) dated February 18, 2015, the
Magistrate Judge recommended that Defendants’ Motion to Revoke In Forma Pauperis
Status and to Dismiss be granted. Magistrate Judge Grand also recommended that
Plaintiff’s Motions to Add Additional Defendants (Doc. Nos. 12, 14) and Motion for Entry
of Default and Default Judgement (Doc. No. 23) be denied as moot. Plaintiff objects to
the R&R and also to the Magistrate Judge’s Order Denying Plaintiff’s Request for
Appointment of Counsel. For the reasons that follow, the Court DENIES Plaintiff’s
objection to the Magistrate Judge’s Order denying appointment of counsel, ADOPTS

the Report and Recommendation, DISMISSES Plaintiff’s complaint without prejudice,
and REVOKES Plaintiff’s in forma pauperis status.
I. PROCEDURAL BACKGROUND
The factual allegations giving rise to Plaintiff’s complaint relate to an incident that
occurred in January 2014, when Stockenauer slipped on ice and suffered an injury, his
subsequent treatment for the injury and his more recent contention that his life is in
danger because government officials have conspired to have another inmate intimidate
or kill Stockenauer to prevent Plaintiff from pursuing his lawsuits and grievances. After
assessing the allegations as well as Defendants’ motion to dismiss, Magistrate Judge
Grand recommended Plaintiff’s in forma pauperis status be revoked pursuant to 28
U.S.C. § 1915(g). In reaching this recommendation, the Magistrate Judge noted that on
three prior occasions the court had dismissed a complaint filed by Plaintiff as frivolous
or for failure to state a claim. In addition, he determined that Plaintiff was not in
imminent danger of serious physical injury when the complaint was filed.
According to the Magistrate Judge, Plaintiff’s allegations about his back injury
have already occurred and his allegations about the conspiracy involving MDOC
officials and prison guards to have Plaintiff murdered “are conclusory and fantastical.”
(Doc. No. 40 at 6). The Magistrate Judge elaborated:
Stockenauer’s various assertions of a conspiracy between government
officials in Lansing and numerous MDOC officials and prison guards to
either murder him or intimidate him into dropping his lawsuits by hiring
prisoner ‘T-Luck’ as a hitman are conclusory, fanciful, and are not
supported by any evidence whatsoever. Stockenauer’s assertion that
[Saginaw Regional Correctional Facility, where he currently is
incarcerated] lacks cameras in the housing unit merely creates speculation as to an
increased opportunity for wrongful conduct to occur there, but falls far short of
specifying any actual imminent danger. Similarly, his allegation that MDOC medical
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staff intended to murder him during surgery is conclusory, delusional, and presented
without any evidentiary support whatsoever. Stockenauer does not allege that he is
currently denied any medical treatment; to the contrary, his own allegations make clear
that he is receiving such care.
(Doc. No. 40 at 7).
II. STANDARD OF REVIEW
Vandiver's request for leave to proceed in forma pauperis is governed by the
1996 Prison Litigation Reform Act. Title 28 U.S.C. § 1915(g) prohibits a prisoner from
bringing a civil action or appeal if the prisoner has “three strikes.” It reads:
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) (emphasis added).
III. ANALYSIS
Although the statute provides an exception to the three strikes rule, where the
prisoner alleges that he is under imminent danger of serious physical injury, the
exception is not applicable here. In Vandiver v. Vasbinder, 416 Fed. Appx. 560, 562
(6th Cir. 2011), the appellate court observed that the exception is a pleading burden.
Because Stockenauer is proceeding pro se, the Court construes his complaint liberally.
Nevertheless, his complaint most contain factual allegations from which this Court
reasonably could infer Plaintiff was under an existing danger at the time he filed his
complaint. Vandiver v. Prison Health Servs., Inc., 727 F.3d 580, 585 (6th Cir. 2013)
(citations omitted).
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To allege imminent danger, Plaintiff must allege a “threat or prison condition” that
is “real and proximate.” Rittner v. Kinder, 290 Fed. Appx. 796, 797 (6th Cir. 2008).
(internal quotation marks omitted). Moreover, the danger of serious physical injury must
exist at the time the complaint is filed.” Id. Consequently, Stockenauer’s assertion that
he faced danger in the past does not invoke the exception.” Id. at 797–98; Percival v.
Gerth, 443 Fed. Appx. 944, 946 (6th Cir. 2011) (“Assertions of past danger will not
satisfy the ‘imminent danger’ exception.”). Further, the allegations do not create a
reasonable inference that the danger alleged exists. Plaintiff’s allegations of a
conspiracy are wholly incredible.
IV. CONCLUSION
Here, the Court concludes that the “three strikes” provision of 28 U.S.C. §
1915(g) applies. Therefore, Defendants’ Motion to Revoke In Forma Pauperis Status
and to Dismiss is GRANTED. Plaintiff’s complaint is DISMISSED WITHOUT
PREJUDICE. Further, Plaintiffs’ Motions to Add Additional Defendants and his Motion
for Entry of Default and Default Judgment are DENIED as moot.
IT IS SO ORDERED.

Date: July 24, 2015

s/Marianne O. Battani
MARIANNE O. BATTANI
United States District Judge

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CERTIFICATE OF SERVICE
The undersigned certifies that the foregoing Order was served upon counsel of record via the Court's ECF System to
their respective email addresses or First Class U.S. mail to the non-ECF participants on July 24, 2015.
s/ Kay Doaks
Case Manager

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