LaPine v. Romanowski et al

Filing 9

OPINION AND ORDER DENYING PLAINTIFFS EMERGENCY MOTION FOR RELIEF FROM JUDGMENT 8 . Signed by District Judge Gershwin A. Drain. (TBan)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

DARRIN LAPINE,
Case No. 15-cv-11362

Plaintiff,

UNITED STATES DISTRICT COURT JUDGE
GERSHWIN A. DRAIN

v.
KEN ROMANOWSKI, et al.,

UNITED STATES MAGISTRATE JUDGE
DAVID R. GRAND

Defendants.
/

OPINION AND ORDER DENYING PLAINTIFF’S EMERGENCY
MOTION FOR RELIEF FROM JUDGMENT [8]
Darrin LaPine (“Plaintiff’) filed a pro se Civil Rights Complaint pursuant to 42 U.S.C. §
1983, and an Application to Proceed Without Prepayment of Fees or Costs pursuant to 28 U.S.C.
§ 1915(a)(1). See Dkt. Nos. 1, 2. The Court denied Plaintiff’s Application for Leave to Proceed
Without Prepayment of the Filing Fee and dismissed the Complaint pursuant to 28 U.S.C. §
1915(g), because Plaintiff already had “three strikes.” See Dkt. No. 6. Presently before the Court
is Plaintiff’s Emergency Motion for Relief from Judgment [8] in which Plaintiff asserts that §
1915(g) does not apply to his case because he is a parolee and not a “prisoner” as defined by §
1915(h).
Plaintiff brings the present Motion pursuant to Federal Rule of Civil Procedure 60(b),
arguing that he is entitled to relief from this Court’s judgment. See Dkt. No. 8. Rule 60(b) allows
a party relief from judgment, order, or other proceeding for the following reasons:
(1) mistake, inadvertence, surprise, or excusable neglect;
(2) newly discovered evidence, that, with reasonable diligence, could have been
discovered in time to move for a new trial under Rule 59(b);

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(3) fraud (whether previously called intrinsic or extrinsic), misrepresentation, or
misconduct by an opposing party;
(4) the judgment is void;
(5) the judgment has been satisfied, released or discharged; it is based on an
earlier judgment that has been reversed or vacated; or applying it prospectively is
no longer equitable; or
(6) any other reason that justifies relief.
FED. R. CIV. P. 60(b).
Under the Prison Litigation Reform Act (“PLRA”), Pub. L. No. 104-134, 110 Stat.
1321(1996), a prisoner is generally prevented from proceeding in forma pauperis in a civil action
if, on three or more prior occasions, the prisoner has 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. The PLRA defines the term “prisoner” as follows:
As used in this section, the term “prisoner” means any person incarcerated or
detained in any facility who is accused of, convicted of, sentenced for, or
adjudicated delinquent for, violations of criminal law or the terms and conditions
of parole, probation, pre-trial release, or diversionary program.
42 U.S.C. § 1915(h) (emphasis added). A plaintiff’s status as a “prisoner” under this section
turns on whether the inmate was confined when suit was filed. See Jaros v. Ill. Dep’t of Corr.,
684 F.3d 667, 669 n.1 (7th Cir. 2012).
Here, even though the Michigan Department of Corrections granted Plaintiff parole and
lists him as a parolee, Plaintiff is still a “person incarcerated or detained in any facility.” The
Complaint alleges that on February 10, 2015, Plaintiff was issued a parole order and was
transferred to the Detroit Reentry Center (“DRC”), formerly known as the Ryan Correctional
Facility, to take part in a violence prevention program. See Dkt. No. 1 at 3. Plaintiff alleges that
he transferred to the DRC on March 19, 2015, but has yet to be placed in a program. He also
alleges that one of the conditions of parole is to reside at the DRC. Id.
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Plaintiff further alleges that another condition requires him to remain in residence from
11:00 P.M. to 6:00 A.M. Id. Yet, Plaintiff complains that the DRC “is not releasing any parolees
and unconstitutionally and unstatutorily (sic) restraining Plaintiff.” Id. at 4. Plaintiff alleges he
“is on ‘parole’ but not being treated as though he is on parole,” and that the DRC is “being run
like it’s a level 4 [the highest security classification].” Id.
Plaintiff describes his circumstances as follows: “Generally there is 1 hour a day of yard
recreation for Plaintiff, no library, no law library, no commissary, no table and chairs in the
commons area, no keys for the cell door, no visits, no personal property, ½ rations of food.” Id.
Plaintiff alleges that he was told that it would take another three to four months to get into a
program and then another thirty to forty-five days until he was released. Id. at 5. Plaintiff alleges
that the DRC is classified as a community treatment center and not as a state correctional facility
under state law. Id. at 6.
Plaintiff’s status, as alleged in the Complaint, is that of a “prisoner” under §1915(h). At a
minimum, Plaintiff is “incarcerated or detained” at “any facility” as a result of his criminal
conviction. See 42 U.S.C. § 1915(h). It does not matter that the state labels him as a parolee, or
that the DRC is being labeled as a community treatment center. Cf. Jackson v. Johnson, 475 F3d
261, 265 (5th Cir. 2007) (finding that detention at halfway house qualifies an individual as a
“prisoner” under § 1915(h)).
It is true that, generally, a parolee does not qualify as a “prisoner” for purposes of the
PLRA. See, e.g., Kerr v. Puckett, 138 F.3d 321 (7th Cir. 1998). However, in Kerr, and cases like
it, “the individual was released from incarceration to the general public.” Jackson, 475 F.3d at
265. Neither in Kerr nor in the other cases where the PLRA has been deemed not to apply to

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parolees “was the prisoner compelled to reside in a halfway house or any other facility after his
release from incarceration.” Id.
The Court is mindful that in Marr v. Booker the Court found that the plaintiff was not a
“prisoner” in a similar case because the plaintiff was labeled as a parolee. 2014 U.S. Dist. LEXIS
87137, 17-18 (E.D. Mich. Apr. 30, 2014). However, this Court is not bound by the decision in
Marr, the rationale for which traces back to cases like Kerr dealing with parolees who had been
released to the general public. Here, in contrast, it is evident from the Complaint that Plaintiff
was “incarcerated or detained” at a facility when he filed his Complaint despite his status as a
parolee. Accordingly, the Court finds that it correctly applied 28 U.S.C. §1915(g) to this case.
Plaintiff further asserts that he is exempt from the three-strikes provision because his
safety is at risk. A plaintiff may maintain a civil action despite having had three or more civil
actions dismissed as frivolous if the prisoner is “under imminent danger of serious physical
injury.” 28 U.S.C. §1915(g). To establish that a complaint falls within the statutory exception to
the three strikes rule, a prisoner must allege that they are under imminent danger at the time that
they seek to file the complaint and proceed in forma pauperis. See Vandiver v. Vasbinder, No.
08-2602, 416 F. App’x 561 (6th Cir. Mar. 28, 2011); see also Malik v. McGinnis, 293 F.3d 559,
562 (2d Cir. 2002) (holding that imminent danger exception requires that the danger exist at the
time the complaint is filed); Ashley v. Dilworth, 147 F.3d 715, 717 (8th Cir. 1998) (finding that
plaintiff sufficiently alleged imminent danger of serious physical injury where he claimed that he
was placed near inmates on his enemy list and subject to ongoing danger); Banos v. O’Guin, 144
F.3d 883, 885 (5th Cir. 1998) (holding that past body cavity searches failed to establish imminent
danger of serious physical injury).

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Here, Plaintiff’s only allegation in this regard is that, because he is a parolee and is being
housed with regular inmates he is “in reasonable foreseeable risk.” See Dkt. No. 8 at 1. This
conclusory allegation does not suffice to exempt this action from the reach of 28 U.S.C.
§1915(g).
Finally, Plaintiff asserts that he does not have three strikes. He is incorrect. See LaPine v.
Savoie, 2014 U.S. Dist. LEXIS 102800 (W.D. Mich. July 29, 2014) (listing strikes).
Accordingly, for the reasons discussed, the Court DENIES Plaintiff’s Emergency Motion
for Relief from Judgment [8].
SO ORDERED.
Dated: June 12, 2015
/s/Gershwin A Drain
HON. GERSHWIN A. DRAIN
United States District Court Judge

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