McGore v. DOE et al

Filing 5

ORDER Denying Motion for Appointment of a Tax Attorney 2 and Dismissing the Complaint Under 28 U.S.C. §1915(g). Signed by District Judge Denise Page Hood. (LSau)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

DARRYL McGORE,
Plaintiff,
Case No. 2:17-cv-11153
Hon. Denise Page Hood

v.
BELLAMY CREEK CORRECTIONAL
FACILITY BUSINESS ACCOUNTANT
JANE DOE OR JOHN DOE, BARAGA
CORRECTIONAL FACILITY BUSINESS
ACCOUNTANT JANE DOE OR JOHN DOE, and
ALGER CORRECTIONAL FACILITY BUSINESS
ACCOUNTANT JANE DOE OR JOHN DOE,
Defendants.
____________________________________________/

ORDER DENYING PLAINTIFF’S MOTION
FOR APPOINTMENT OF A TAX ATTORNEY
AND
DISMISSING THE COMPLAINT UNDER 28 U.S.C. § 1915(g)
This matter has come before the Court on plaintiff Darryl McGore’s pro se
civil complaint and motion for appointment of a pro bono tax attorney. Plaintiff is
a state prisoner at the Baraga Maximum Correctional Facility in Baraga, Michigan.
The defendants are unnamed business accountants at the Baraga correctional
facility and two other correctional facilities in Michigan. The complaint appears to
allege that, in 2016 and 2017, Plaintiff was charged tax on cosmetic items and
postage stamps, which he purchased in the prison store. He now seeks a tax refund

on the basis that he was participating in an indigent welfare program and should
not have been charged tax.
Plaintiff did not pay the filing fee for this action, and a review of federal
court records indicates that more than three of Plaintiff’s prior civil complaints
have been dismissed as frivolous or for failure to state a claim. See McGore v.
Rich, et al., No. 1:09-cv-00395, Memorandum Op. Denying Leave to Proceed In
Forma Pauperis - Three Strikes, page 3 (W.D. Mich. May 12, 2009) (collecting
cases). In still other cases, Plaintiff was denied leave to proceed in forma pauperis
because he had “three strikes.” See id. (collecting cases).
A federal litigant who is too poor to pay court fees ordinarily “may
commence a civil action without prepaying fees or paying certain expenses.”
Coleman v. Tollefson, 135 S. Ct. 1759, 1761 (2015) (citing 28 U.S.C. § 1915).
Nevertheless,
a special “three strikes” provision prevents a court from affording in
forma pauperis status where the litigant is a prisoner and he or she
“has, on 3 or more prior occasions, while incarcerated . . . , 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.”
Id. (quoting 28 U.S.C. § 1915(g)). An exception to this rule applies when “the
prisoner is under imminent danger of serious physical injury.”
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28 U.S.C. §

1915(g). “The imminent danger exception is essentially a pleading requirement
subject to the ordinary principles of notice pleading.” Vandiver v. Vasbinder, 416
F. App’x 560, 562 (6th Cir. 2011).
Plaintiff has not alleged that he is in “imminent danger,” and nothing in the
complaint suggests that he is in imminent danger of serious physical injury.
Accordingly, the Court summarily dismisses the complaint without prejudice and
denies as moot Plaintiff’s motion for appointment of a tax attorney (No. 2). The
Court certifies that an appeal from this order would be frivolous and could not be
taken in good faith or without prepayment of the appellate filing fee.
SO ORDERED.

S/Denise Page Hood
Denise Page Hood
Chief Judge, United States District Court
Dated: May 19, 2017
I hereby certify that a copy of the foregoing document was served upon counsel of
record on May 19, 2017, by electronic and/or ordinary mail.
S/LaShawn R. Saulsberry
Case Manager

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