Gresham v. Jenkins et al

Filing 7

OPINION and ORDER Dismissing 1 Complaint Pursuant to 28 U.S.C. § 1915(g). Signed by District Judge Gerald E. Rosen. (JOwe)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

MICHAEL GRESHAM, # 272603,
Plaintiff,
v.

CASE NO. 2:15-CV-11640
HONORABLE GERALD E. ROSEN

JUDGE JENKINS, et. al.
Defendants,
__________________________________/
OPINION AND ORDER DISMISSING COMPLAINT
PURSUANT TO 28 U.S.C. § 1915(g)
This matter is before the Court on Plaintiff Michael Gresham’s pro se
civil rights complaint filed pursuant to 42 U.S.C. § 1983. Plaintiff filed an
application to proceed without prepayment of fees. Plaintiff is a state inmate
who is currently confined at the Ionia Correctional Facility in Ionia, Michigan.
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Upon review of plaintiff’s case and his litigation history in the federal courts,

this Court concludes that his civil rights complaint must be dismissed without
prejudice pursuant to 28 U.S.C. § 1915(g).
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Although plaintiff claims that he was transferred from the Macomb Regional Correctional Facility
to the Gus Harrison Correctional Facility in Adrian, Michigan on or about February 5, 2015, the Michigan
Department of Corrections’ Offender Tracking Information System (OTIS), which this Court is permitted to
take judicial notice of, See Ward v. Wolfenbarger,323 F. Supp. 2d 818, 821, n. 3 (E.D. Mich. 2004),
indicates that plaintiff is now incarcerated at the Ionia Correctional Facility in Ionia, Michigan.

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I. Background
Title 28 U.S.C. § 1914(a) provides that “[t]he clerk of each district court
shall require the parties instituting any civil action, suit or proceeding in such
court, whether by original process, removal or otherwise, to pay a filing fee of
$350 ....” See also Owens v. Keeling, 461 F. 3d 763, 773 (6th Cir. 2006).
Plaintiff failed to provide the $350.00 filing fee when he filed his complaint.
The Prisoner Litigation Reform Act of 1995 (PLRA) states that “if a prisoner
brings a civil action or files an appeal in forma pauperis, the prisoner shall be
required to pay the full amount of a filing fee.” 28 U.S.C. § 1915(b)(1)(as
amended). See also In Re Prison Litigation Reform Act, 105 F. 3d 1131, 1138
(6th Cir. 1997). The in forma pauperis statute, 28 U.S.C. § 1915(a), does
provide prisoners the opportunity to make a “downpayment” of a partial filing
fee and pay the remainder in installments. See Miller v. Campbell, 108 F.
Supp. 2d 960, 962 (W.D. Tenn. 2000).
A search of federal court records indicates that plaintiff has filed at least
eight prior civil actions which have been dismissed as frivolous and/or for
failure to state a claim upon which relief may be granted. See Gresham v.
Caruso, No. 2:10–cv–196 (W.D. Mich. October 27, 2011); Gresham v. Canlis,
No. 2:11–cv–179, 2011 WL 3273219 (W.D. Mich. July 29, 2011); Gresham v.

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Wolak, No. 2:10–cv–239, 2011 WL 3101098 (W.D. Mich. July 25, 2011);
Gresham v. Caruso, No. 2:10–cv–195, 2011 WL 1357311 (W.D. Mich. April
11, 2011); Gresham v. Paine, No. 1:10–cv–1146 (W.D. Mich. March 8, 2011);
Gresham v. Caruso, No. 1:10–cv–1038, 2011 WL 284454 (W.D. Mich.
January 26, 2011); Gresham v. Verville, No. 2:10–cv–198, 2011 WL 202023
(W.D. Mich. January 19, 2011); Gresham v. Mich. Dep't of Corr., No.
2:07–cv–241, 2008 WL 2397646 (W.D. Mich. June 9, 2008).
Plaintiff has also filed at least twelve separate § 1983 complaints, which
were dismissed pursuant to 28 U.S.C. § 1915(g) on the ground that plaintiff
had at least three prior civil rights complaints which had been dismissed for
being frivolous. See Gresham v. Romanowsky, No. 2:12-cv-15489 (E.D. Mich.
May 10, 2013); Gresham v. Johnson, No. 13-10351, 2013 WL 1703897 (E.D.
Mich. April 19, 2013); Gresham v. Romanowski, No. 2:12-CV-14881 (E.D.
Mich. January 7, 2013); Gresham v. Prelesnik, No. 1:12-cv-276 (W.D. Mich.
July 2, 2012); Gresham v. Czop, No. 1:12-CV-494, 2012 WL 2317558 (W.D.
Mich. June 18, 2012); Gresham v. Mutschler, No. 2:12–cv–9 (W.D. Mich.
February 12, 2012); Gresham v. Violetta, No. 2:12–cv–24 (W.D. Mich.
February 6, 2012); Gresham v. Dahl, No. 2:12–cv–21 (W.D. Mich. February
6, 2012); Gresham v. Napel, No. 2:11–cv–520 (W.D. Mich. February 6, 2012);

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Gresham v. Snyder, No. 2:12–cv–5, 2012 WL 259975 (W.D.Mich. January 27,
2012); Gresham v. LaChance, No. 2:11–cv–231 (W.D. Mich. June 24, 2011);
Gresham v. Canlis, No. 2:11–cv–179 (W.D. Mich. June 9, 2011).
II. Discussion
Under the Prison Litigation Reform Act of 1995 (“PLRA”), Pub.L.No.
104-134, 110 Stat. 1321 (April 26, 1996), a federal court may dismiss a case
if, on 3 or more previous occasions, a federal court dismissed the incarcerated
plaintiff’s action because it was frivolous or malicious or failed to state a claim
for which relief may be granted. See, 28 U.S.C. § 1915(g) (1996); Thaddeus-X
v. Blatter, 175 F. 3d 378, 400 (6th Cir. 1999); Witzke v. Hiller, 966 F. Supp.
538, 540 (E.D. Mich. 1997)(Gadola, J.). The three strikes provision of the
PLRA prohibits a prisoner, who has had three prior suits dismissed for being
frivolous, from proceeding in forma pauperis in a civil rights suit absent an
allegation that the prisoner is in imminent danger of serious physical injury.
See Clemons v. Young, 240 F. Supp. 2d 639, 641 (E.D. Mich. 2003)(Lawson,
J.). A federal district court may sua sponte raise the three strikes provision of
the PLRA on its own initiative. Witzke, 966 F. Supp. at 539.
Plaintiff has at least eight prior civil rights complaints which were
dismissed for being frivolous, malicious, or failing to state a claim upon which

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relief could be granted. More importantly, plaintiff has been advised by judges
on at least twelve separate occasions that he was precluded from proceeding
in forma pauperis in these other civil rights actions pursuant to § 1915(g)
because of these prior dismissals. 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).
Plaintiff seeks to invoke the imminent danger exception to 1915(g) to
permit him to proceed without prepayment of fees in spite of his numerous
prior dismissals.
As a judge in the Western District of Michigan stated in rejecting another
attempt by plaintiff to invoke the imminent danger exception, plaintiff’s
voluminous complaint “consists of numerous pages of disjointed allegations,
interspersed at random with copies of medical kites, medical responses,
grievance forms, commissary order forms, and photocopy requests.” Gresham
v. Czop, 2012 WL 2317558, at *3. Plaintiff’s claims “are difficult to parse
because Plaintiff frequently attributes single acts to a large number of
Defendants (without describing any individual’s role in the alleged conduct),

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uses the passive voice, fails to identify any responsible actor, or attributes
conduct to actors who are not named as Defendants.” Id.
Assuming that plaintiff’s various allegations can be properly ascertained,
the main problem with invoking the imminent danger exception is that all of
plaintiff’s allegations involve past misconduct at either the Marquette Branch
Prison, the Macomb Regional Correctional Facility, or the Gus Harrison
Correctional Facility. Plaintiff is no longer incarcerated at these facilities but
is now imprisoned at the Ionia Correctional Facility.
Plaintiff’s complaint does not fall within the imminent danger exception
to Section 1915(g) because all of his allegations involve acts of prior abuse.
In order to come within the “imminent danger” exception contained in 28
U.S.C.§ 1915(g), a prisoner must show that “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.” Rittner v. Kinder, 290 Fed. Appx. 796,
797 (6th Cir. 2008). Assertions of past danger will not satisfy the imminent
danger exception. See Pointer v. Wilkinson, 502 F.3d 369, 371, n. 1 (6th Cir.
2007); Rittner, 290 Fed. Appx. at 797. The imminent danger exception to the
“three strikes” provision of § 1915(g) requires that the imminent danger be
contemporaneous with the complaint's filing. See Vandiver v. Vasbinder, 416

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Fed. Appx. 560, 562 (6th Cir. 2011). All of plaintiff’s claims involve allegations
of past abuse. Moreover, plaintiff cannot allege that he is in imminent danger
of serious physical injury at a facility where he is no longer incarcerated. See
Medberry v. Butler, 185 F. 3d 1189, 1193 (11th Cir. 1999).
In addition, plaintiff’s allegations of imminent danger are similar, if not
the same, to allegations that he made and which were rejected in prior cases.
Broadly speaking, plaintiff claims that he has been sexually assaulted or
harassed by prison guards or staff. Plaintiff also claims that some of the
defendants have placed a “hit” upon him to have him killed. Plaintiff further
claims that prison staff are forcing psychotropic medications on him to make
him appear to look mentally ill, in an apparent attempt to discredit plaintiff.
Plaintiff further claims that he has been labelled a “snitch” by prison staff.
These claims have been rejected numerous times as fantastic or delusional.
In Gresham v. Czop, No. 1:12-CV-494, 2012 WL 2317558, at *6-7, the judge,
in rejecting similar allegations of imminent danger made by plaintiff as
“conclusory,” “ridiculous”, and “wholly incredible,” cited to no fewer than
eleven previous cases in which other judges had rejected plaintiff’s claims that
various prison officials were trying to kill him, had sexually assaulted him,
forced plaintiff against his will to take psychotropic medications, or otherwise

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physically assaulted him. Likewise, plaintiff’s claim that he is in imminent
danger because he was labeled a “snitch” was rejected by Judge Cleland of
this district. See Gresham v. Johnson, 2013 WL 1703897, at *2 (petitioner’s
claim that he was in imminent danger because he was labeled a snitch was
unsubstantiated by sufficient facts or detail to raise a real possibility that he
is in danger of imminent physical injury).
In addition, although plaintiff claims to be suffering from numerous
health problems, including bipolar disorder, sleep apnea, hernias, skin rash,
testicular lumps and tooth pain, other judges have previously rejected these
conditions as presenting an imminent danger of serious physical injury,
particularly where it appeared that plaintiff was being treated for those
conditions. Gresham v. Czop, 2012 WL 2317558, at *5, See also Gresham v.
Romanowski, No. 2:12-CV-14881, at * 4; Gresham v. Prelesnik, No.
1:12-cv-276, at * 8.
Plaintiff’s conclusory allegations that prison staff are trying to kill him,
have sexually abused him, are forcing him to take psychotropic medications
against his will, and are ignoring his health needs are completely unsupported
by any evidentiary material and appear to be nothing more than “a thinly
veiled rehashing” of similar claims made by plaintiff in prior lawsuits that were

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rejected by the judges in those cases. See Chance v. Tennessee, 47 Fed.
Appx. 762, 763 (6th Cir. 2002). Plaintiff’s repeated allegations of imminent
danger appear to be not only conclusory and unsupported, but downright
delusional or irrational. A district court may deny a prisoner leave to proceed
pursuant to § 1915(g) when that prisoner’s claims of imminent danger are
“conclusory or ridiculous,” or are “‘clearly baseless’ (i.e. are fantastic or
delusional and rise to the level of ‘irrational or wholly incredible).’” Rittner v.
Kinder, 290 Fed. Appx. at 798. Indeed, plaintiff’s extensive mental health
history makes his imminent danger claims less believable than they might
otherwise be. See Ball v. Famiglio, 726 F.3d 448, 470 (3rd Cir. 2013). Plaintiff
is not entitled to invoke the imminent danger exception to § 1915(g), because
his complaint contains insufficient facts and detail to establish that he is in
danger of imminent physical injury or are delusional, irrational, or wholly
incredible. Rittner, 290 Fed. Appx. at 798.
Plaintiff’s complaint is therefore subject to dismissal pursuant to §
1915(g). Plaintiff may, however, resume any of the claims dismissed under
§ 1915(g) if he decides to pay the filing fee under the fee provisions of 28
U.S.C. § 1914. Witzke, 966 F. Supp. at 540. Since plaintiff has had eight prior
cases dismissed against him for being frivolous, malicious, or failing to state

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a claim, 1915(g) bars him from appealing in forma pauperis. See Drummer v.
Luttrell, 75 F. Supp. 2d 796, 805-806 (W.D. Tenn. 1999). The Court therefore
refuses to certify that any appeal from this dismissal would be in good faith.
Finally, because plaintiff has been barred from filing this action without
prepayment of fees pursuant to 28 U.S.C. § 1915(g), the Court will deny
plaintiff’s request for injunctive relief. See e.g. Alea v. Dennis, 83 Fed. Appx.
115 (6th Cir. 2003). The Court will deny plaintiff’s remaining motions
as moot. 2

III. ORDER
IT IS HEREBY ORDERED that Plaintiff Michael Gresham’s in forma
pauperis status is DENIED and the complaint is DISMISSED pursuant to 28
U.S.C. § 1915(g).
IT IS FURTHER ORDERED AND CERTIFIED that any appeal taken by
Plaintiff would not be done in good faith.
IT IS FURTHER ORDERED that plaintiff’s motions for a preliminary
injunction [Dkt. # 3], motion to join parties for a class action [Dkt. # 4], and

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To the extent that plaintiff is repeating allegations that he has already raised in Gresham v.
Stewart, No. 13-10189 (E.D. Mich.), which remains pending before Judge Gershwin A. Drain, these would
be dismissed as duplicative of the allegations in that case. See e.g. English v. Runda, 875 F.2d 863
(Table); No. 1989 WL 51408, * 1 (6th Cir. May 18, 1989).

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motion for order compelling MDOC Business Office to turn over trust account
statements [Dkt. # 5] are DENIED.

s/Gerald E. Rosen
Chief Judge, United States District Court
Dated: May 26, 2015
I hereby certify that a copy of the foregoing document was served upon the
parties and/or counsel of record on May 26, 2015, by electronic and/or
ordinary mail.
s/Julie Owens
Case Manager, [phone]

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