Northington v. Abdellatif et al
OPINION AND ORDER DENYING PLAINTIFFS APPLICATION FORLEAVE TO PROCEED WITHOUT PREPAYMENT OF THE FILING FEEAND DISMISSING THE FIRST AMENDED CIVIL RIGHTS COMPLAINT AND DENYING CERTIFICATE OF APPEALABILITY - Signed by District Judge Paul D. Borman. (DTof)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
GARY M. NORTHINGTON, #193035,
CASE NO. 2:19-CV-12329
HONORABLE PAUL D. BORMAN
BADAWI KHADER ABDELLATIF, et al.,
OPINION AND ORDER DENYING PLAINTIFF’S APPLICATION FOR
LEAVE TO PROCEED WITHOUT PREPAYMENT OF THE FILING FEE
AND DISMISSING THE FIRST AMENDED CIVIL RIGHTS COMPLAINT
Michigan prisoner Gary M. Northington (“Plaintiff”), currently confined at the
Chippewa Correctional Facility in Kincheloe, Michigan, has filed a pro se first
amended civil rights complaint pursuant to 42 U.S.C. § 1983 and the Americans with
Disabilities Act (“ADA”), as well as an application to proceed without prepayment of
the filing fee for this action. In his complaint, Plaintiff raises claims concerning his
medical care, his prison transfers, the taking of his typewriter, legal documents,
guitar, and other property, the grievance process, his access to the courts, and
retaliation. He names medical personnel, prison wardens, prison employees, and
administrative officials employed by the Michigan Department of Corrections
(“MDOC”) as the defendants in this action. Plaintiff sues the defendants in their
official and personal capacities and seeks injunctive-type relief and monetary
Under the Prison Litigation Reform Act (“PLRA”), Pub. L. No. 104-134, 110
Stat. 1321 (1996), a prisoner may be precluded from proceeding without prepayment
of the filing fee in a civil action under certain circumstances. The statute states, in
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 a federal court to
dismiss a civil case where the 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 or 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 three strikes provision of § 1915(g)”).
Plaintiff is a prolific litigator in federal courts. The Court’s records reveal that
he has filed at least three prior civil actions which have been dismissed as frivolous or
for failure to state a claim upon which relief may be granted. See Northington v.
Armstrong, et al., No. 1:04-CV-00164 (W.D. Mich. Aug. 5, 2004) (dismissing
complaint for failure to state a claim); Northington v. Department of Corr., et al.,
Consol. Case Nos. 2:01-CV-72428, 2:02-CV-71847 (E.D. Mich. Nov. 20, 2002)
(dismissing complaint for failure to state a claim because it was barred by the statute
of limitations, with an alternative holding that Plaintiff had not exhausted
administrative remedies); Northington v. Glazer, et al., No. 2:96-CV-71707 (E.D.
Mich. May 29, 1996) (dismissing complaint as frivolous). Plaintiff has also
previously been notified of his three-strike status and been denied leave to proceed
without prepaying the filing fee in at least one other case. See Northington v.
Armstrong, et al., No. 1:10-CV-00424 (W.D. Mich. May 27, 2010) (denying Plaintiff
leave to proceed in forma pauperis based upon his three prior strikes).
Additionally, on May 19, 2003, the United States Supreme Court ruled that
Plaintiff had repeatedly abused the Court’s process and directed the Clerk of the
Court not to accept any further petitions from Plaintiff in noncriminal cases unless he
paid the full filing fee. See Northington v. Michigan Dept. of Corr., 538 U.S. 919
Consequently, Plaintiff is a “three-striker” who cannot proceed without
prepayment of the filing fee unless he shows that he is “under imminent danger of
serious physical injury.” 28 U.S.C. § 1915(g). To fall within this 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.” 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., as is an assertion of the potential for future
harm. See Vandiver v. Vasbinder, 416 F. App’x 560, 562 (6th Cir. 2011) (“[T]he
plain language of § 1915(g) requires the imminent danger to be contemporaneous
with the complaint’s filing.”). Finally, as the Sixth Circuit recently clarified, the type
of physical injury alleged must “have potentially dangerous consequences such as
death or severe bodily harm” to qualify as “serious” for purposes of § 1915(g).
Gresham v. Meden, No. 18-1811, 2019 WL 4458807, at *2 (6th Cir. 2019).
Plaintiff fails to show that he is under imminent danger of serious physical
injury. Most of his allegations concern his past medical care, prison transfers,
property taking, grievance issues/access to the courts, and alleged instances of
retaliation. While he asserts that he continues to have serious medical conditions,
including a heart ailment (for which he admits that he received surgical treatment in
2016 and 2019), he fails to allege facts which show that he is under imminent danger
of serious physical injury based upon those conditions. He states that he has
experienced the various ailments since 2013 and that they are ongoing, suggesting
that these ailments are unlikely to lead to dangerous consequences such as death or
severe bodily harm. Moreover, Plaintiff’s concerns about potential future harm are
speculative at best and insufficient to satisfy the exception to the three strikes rule.
Plaintiff fails to establish that he should be allowed to proceed without prepayment of
the filing fee despite the fact that he has had three or more prior lawsuits dismissed as
frivolous or for failure to state a claim upon which relief may be granted.
Accordingly, the Court DENIES Plaintiff’s application for leave to proceed
without prepayment of the filing fee for this action and DISMISSES his first amended
civil rights complaint pursuant to 28 U.S.C. § 1915(g). This dismissal is without
prejudice to the filing of a new civil rights complaint accompanied by the full
payment of the $350.00 filing fee and the $50.00 administrative fee. Any such
complaint will be reviewed to determine whether it should be served upon the
defendants or summarily dismissed, in whole or in part, under 28 U.S.C. § 1915A(b),
which requires a federal court to dismiss a complaint brought against governmental
entities, officers, and employees if the complaint is “frivolous, malicious, or fails to
state a claim upon which relief may be granted” or “seeks monetary relief from a
defendant who is immune from such relief.”
Lastly, the Court concludes that it has properly applied the “three strikes”
provision of 28 U.S.C. § 1915(g) such that an appeal from this order cannot be taken
in good faith. See 28 U.S.C. § 1915(a)(3).
IT IS SO ORDERED.
Dated: October 11, 2019
s/Paul D. Borman
Paul D. Borman
United States District Judge
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