Clark v. Morgan et al
Filing
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OPINION and ORDER denying 2 Application to Proceed Without Prepaying Fees or Costs and dismissing complaint. Signed by District Judge Nancy G. Edmunds. (CBet)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
AARON CLARK, IV, #222915,
Plaintiff,
v.
CASE NO. 2:15-CV-10994
HONORABLE NANCY G. EDMUNDS
S. MORGAN, et al.,
Defendants.
/
OPINION AND ORDER DENYING APPLICATION TO PROCEED WITHOUT
PREPAYMENT OF FEES OR COSTS AND DISMISSING COMPLAINT
I.
Introduction
Michigan prisoner Aaron Clark, IV (“Plaintiff”), currently confined at the Saginaw
Correctional Facility in Freeland, Michigan, has filed a pro se civil rights complaint, as well
as an application to proceed without prepayment of the $350.00 filing fee (and without
payment of the $50.00 administrative fee) for this action. See 28 U.S.C. § 1915(a)(1). In
his lengthy, handwritten complaint, Plaintiff raises claims concerning retaliatory transfer,
the refusal to place him in protective custody, discrimination, and retaliation. The events
giving rise to the complaint occurred while Plaintiff was incarcerated at the Baraga
Correctional Facility in Baraga, Michigan, as well as his current place of confinement.
Plaintiff names 47 Michigan Department of Corrections (“MDOC”) employees as
defendants in this action and sues them in their individual and official capacities. He seeks
declaratory, injunctive, and monetary relief.
Having reviewed the matter, the Court denies the application to proceed without
prepayment of fees or costs and dismisses the complaint without prejudice pursuant to 28
U.S.C. § 1915(g).
II.
Discussion
Under the Prison Litigation Reform Act of 1996 (“PLRA”), a prisoner may be
precluded from proceeding without prepayment of the filing fee in a civil action under
certain circumstances. The statute provides, 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 the 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)”).
The Court’s records reveal that Plaintiff has filed at least three 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., Clark v. Lindemuth, et al., No. 2:12-CV-159 (W.D. Mich. Oct.
19, 2012), aff’d, No. 12-2417 (6th Cir. Sept. 19, 2013); Clark v. Lindemuth, et al., No. 2:11CV-336 (W.D. Mich. July 9, 2012), aff’d, No. 12-1983 (6th Cir. Feb. 11, 2013); Clark v.
Derry, et al., No. 2:11-CV-253 (W.D. Mich. April 16, 2012), aff’d, No. 12-1495 (6th Cir. Feb.
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11, 2013); Clark v. Havelka, et al., No. 2:10-CV-11994 (E.D. Mich. June 21, 2010).
Consequently, Plaintiff is a “three-striker” who cannot proceed without prepayment of the
filing fee (and without payment of the administrative fee) unless he can demonstrate that
he is “under imminent danger of serious physical injury.” 28 U.S.C. § 1915(g).1
To fall within the statutory exception to the three strikes rule, a prisoner must allege
that the threat or prison condition is ‘real and proximate’ and 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)). An assertion of past
danger is insufficient to invoke the exception. Id.; see also Percival v. Gerth, 443 F. App’x
944, 946 (6th Cir. 2011). The allegations must also be sufficiently serious to allow a court
to draw a reasonable inference that the danger exists. Vandiver v. Prison Health Services,
Inc., 727 F.3d 580, 585 (6th Cir. 2013). Thus, conclusory, ridiculous, or clearly baseless
assertions are insufficient to invoke the exception. Taylor v. First Med. Mgt., 508 F. App’x
488, 492 (6th Cir. 2012); Rittner, 290 F. App’x at 798.
Plaintiff does not allege facts which indicate that he is under imminent danger of
serious physical injury. First, to the extent that he complains about conditions at Baraga,
he cannot establish that he is under imminent danger because he is no longer confined at
that facility and individuals employed at that facility are no longer responsible for him.
Second, to the extent that he complains about conditions at Saginaw, he cites to past
1
The Court notes that Plaintiff’s previously dismissed civil rights complaints have
involved allegations similar to those raised in this complaint, albeit against different
MDOC employees.
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incidents or rumored incidents of violence concerning other inmates and the fact that he
is housed in a prison with violent offenders and gang members who get into fights, have
weapons, and/or make threats against each other. Such allegations are insufficient to
show that he himself is under imminent danger of serious physical injury. See, e.g., Threatt
v. Davenport, No. 1:13-CV-421, 2013 WL 1831803, *3 (W.D. Mich. April 30, 2013)
(prisoner’s claim that he was in imminent danger because he was housed with violent
offenders and gang bangers was “far too speculative” to fall within the exception to the
three strikes rule). Plaintiff does not allege facts to show that he has personally been
attacked or physically harmed by other inmates or prison employees or, more relevantly,
that he faced such threats at the time he filed his complaint. Plaintiff’s concerns about his
safety and his fear of being assaulted at some point in the future are conclusory and
speculative. Conclusory or vague allegations of some potential danger are insufficient to
satisfy the exception to the three strikes rule. See, e.g., Thompson v. Sampson, No. 1:10CV-231, 2010 WL 1027897, *2-3 (W.D. Mich. Mar.18, 2010). Plaintiff fails to show that he
is under imminent danger of serious physical injury so as to fall within the exception to the
three strikes rule. Consequently, he is not allowed to proceed without prepayment of the
filing fee for this action.
III.
Conclusion
Based upon the foregoing discussion, the Court concludes that Plaintiff has filed at
least three prior cases which have been dismissed as frivolous and/or for failure to state
a claim upon which relief may be granted and has failed to establish that he is under
imminent danger of serious physical injury so as to fall within the exception to the three
strikes provision of 28 U.S.C. § 1915(g). Accordingly, the Court DENIES his application
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to proceed without prepayment of fees or costs and DISMISSES his civil rights complaint
pursuant to 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 and the $50.00 administrative fee.
IT IS SO ORDERED.
s/ Nancy G. Edmunds
NANCY G. EDMUNDS
UNITED STATES DISTRICT JUDGE
Dated: April 7, 2015
CERTIFICATION
I hereby certify that a copy of this Opinion & Order were sent to counsel of record and/or parties
by electronic means and/or U.S. Mail on this 7th day of April, 2015.
s/ Carol J Bethel
Case Manager
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