McCreary #236984 v. Becker et al
OPINION ; signed by Judge Robert J. Jonker (Judge Robert J. Jonker, ymc)
UNITED STATES OF AMERICA
UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MICHIGAN
Case No. 1:11-cv-1298
Honorable Robert J. Jonker
K. BECKER et al.,
OPINION DENYING LEAVE
TO PROCEED IN FORMA PAUPERIS - THREE STRIKES
Plaintiff Cornell McCreary, a prisoner incarcerated at Bellamy Creek Correctional
Facility (IBC), filed a complaint pursuant to 42 U.S.C. § 1983. Plaintiff seeks leave to proceed in
forma pauperis (docket #2). Because Plaintiff has filed at least three lawsuits that were dismissed
as frivolous, malicious or for failure to state a claim, he is barred from proceeding in forma pauperis
under 28 U.S.C. § 1915(g). The Court will order Plaintiff to pay the $350.00 civil action filing fee
within twenty-eight (28) days of this opinion and accompanying order, and if Plaintiff fails to do so,
the Court will order that his action be dismissed without prejudice. Even if the case is dismissed,
Plaintiff will be responsible for payment of the $350.00 filing fee in accordance with In re Alea, 286
F.3d 378, 380-81 (6th Cir. 2002).
The Prison Litigation Reform Act (PLRA), Pub. L. No. 104-134, 110 Stat. 1321
(1996), which was enacted on April 26, 1996, amended the procedural rules governing a prisoner’s
request for the privilege of proceeding in forma pauperis. As the Sixth Circuit has stated, the PLRA
was “aimed at the skyrocketing numbers of claims filed by prisoners – many of which are meritless –
and the corresponding burden those filings have placed on the federal courts.” Hampton v. Hobbs,
106 F.3d 1281, 1286 (6th Cir. 1997). For that reason, Congress put into place economic incentives
to prompt a prisoner to “stop and think” before filing a complaint. Id. For example, a prisoner is
liable for the civil action filing fee, and if the prisoner qualifies to proceed in forma pauperis, the
prisoner may pay the fee through partial payments as outlined in 28 U.S.C. § 1915(b). The
constitutionality of the fee requirements of the PLRA has been upheld by the Sixth Circuit. Id. at
In addition, another provision reinforces the “stop and think” aspect of the PLRA by
preventing a prisoner from proceeding in forma pauperis when the prisoner repeatedly files meritless
lawsuits. Known as the “three-strikes” rule, the provision states:
In no event shall a prisoner bring a civil action or appeal a judgment
in a civil action or proceeding under [the section governing proceedings in forma pauperis] 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). The statutory restriction “[i]n no event,” found in § 1915(g), is express and
unequivocal, though the statute does allow an exception for a prisoner who is “under imminent
danger of serious physical injury.” Id. The Sixth Circuit has upheld the constitutionality of the
“three-strikes” rule against arguments that it violates equal protection, the right of access to the
courts, and due process, and that it constitutes a bill of attainder and is ex post facto legislation.
Wilson v. Yaklich, 148 F.3d 596, 604-06 (6th Cir. 1998); accord Pointer v. Wilkinson, 502 F.3d 369,
377 (6th Cir. 2007) (citing Wilson, 148 F.3d at 604-06); Rodriguez v. Cook, 169 F.3d 1176, 1178-82
(9th Cir. 1999); Rivera v. Allin, 144 F.3d 719, 723-26 (11th Cir. 1998); Carson v. Johnson, 112 F.3d
818, 821-22 (5th Cir. 1997).
Plaintiff has been an active litigant in the federal courts in Michigan. In at least
three of Plaintiff’s lawsuits, the Court entered dismissals on the grounds that Plaintiff’s claims were
frivolous or failed to state a claim. See McCreary v. Bell et al., No. 1:10-cv-1211 (W.D. Mich. Sept.
30, 2011); McCreary v. Cox et al., No. 2:04-cv-72677 (E.D. Mich. Aug. 13, 2004); McCreary v.
Perry, No. 2:02-cv-72038 (E.D. Mich. May 25, 2002). Thus, Plaintiff has three strikes under
Furthermore, Plaintiff’s action does not fall under the exception for an inmate under
“imminent danger of serious physical injury.” 28 U.S.C. § 1915(g). Plaintiff’s allegations concern
events occurring while he was incarcerated at Oaks Correctional Facility (ECF), and the virtually all
of the individuals named as Defendants are employees of ECF.1 Plaintiff alleges that from October
2009 through November 2011, while he was at ECF, Defendants put his life in danger by not
screening the inmates who were assigned to his cell. On December 20, 2009, Plaintiff’s cell-mate
attacked him and a prison guard ignored Plaintiff’s requests for help. After the attack, Plaintiff
requested his own cell for protection, but his request was denied. On March 23, 2010, Plaintiff’s
cell-mate “bugged out and threatened” him in front of prison officials. (Compl. ¶ 13, docket #1.)
Plaintiff again requested his own cell, but his request was denied.
Defendant Caruso, who is sued in her personal capacity, is not an employee of ECF. She is the former Director
of the MDOC. Plaintiff also sues the MDOC.
Plaintiff further alleges that Defendants did not provide adequate medical care for the
injuries that he received during the attack in 2009, namely, a broken arm, a dislocated ankle, and a
broken leg. He now has metal rods in his ankle and leg. He alleges that his arm is now deformed
because the treating physician put a cast on his arm rather than repairing the bones that were broken
inside the arm. His arm now hurts when he uses it. Defendants refused to provide further treatment
to correct his arm. Defendants also refused to provide Plaintiff with medically-ordered shoes that
would ease the pain he feels when he walks on his injured ankle.
Plaintiff also alleges that he has been harassed by prison officials at ECF. On one
occasion, Assistant Resident Unit Supervisor (ARUS) Benjelink shook down his cell, broke
Plaintiff’s headphones, and threatened to destroy Plaintiff’s television. On another occasion,
Benjelink conspired to put Plaintiff in a cell with prisoner Williams, “a problem inmate who [w]as
moved numerous times and [is] a mental [h]ealth [p]risoner [who] cannot get along with other
prisoners.” (Compl. ¶ 28.) Later, in November 2011, Benjelink conspired with Sgt. McLendon to
write a threatening behavior misconduct against Plaintiff. Plaintiff was found not guilty of the
misconduct, but a prison officer confiscated his television while he was in segregation before the
misconduct hearing. Plaintiff attempted to grieve the confiscation of his television, but officials
failed or refused to respond. Plaintiff was transferred out of ECF to IBC on November 22, 2011.
Congress did not define “imminent danger” in the PLRA, but it is significant that
Congress chose to use the word “imminent,” a word that conveys the idea of immediacy.
“Imminent” is “Near at hand . . . impending; on the point of happening; threatening, menacing,
perilous. Something which is threatening to happen at once, something close at hand, something to
happen upon the instant . . . and on the point of happening.” BLACK’S LAW DICTIONARY , 514-15
(6th ed. 1991). “Imminent” is also defined as “ready to take place, near at hand, impending, hanging
threateningly over one’s head, menacingly near.” WEBSTER’S THIRD NEW INTERNATIONAL
DICTIONARY , 1130 (1976). “Imminent danger” is “such an appearance of threatened and impending
injury as would put a reasonable and prudent man to his instant defense.” BLACK’S LAW
DICTIONARY , 515 (6th ed. 1991).
The Sixth Circuit has recognized the standard previously adopted by other circuit
While the Sixth Circuit has not defined the term “imminent danger”
for purposes of this section, other Circuits have held that to meet the
requirement, 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. See, e.g., 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). Thus a prisoner’s assertion that he or she faced
danger in the past is insufficient to invoke the exception. Id. Other
Circuits also have held that district courts may deny a prisoner leave
to proceed pursuant to § 1915(g) when the prisoner’s claims of
imminent danger are “conclusory or ridiculous,” Ciarpaglini, 352
F.3d at 331, or are “‘clearly baseless’ (i.e. are fantastic or delusional
and rise to the level of ‘irrational or wholly incredible).’” Gibbs v.
Cross, 160 F.3d 962, 967 (3d Cir.1998) (quoting Denton v.
Hernandez, 504 U.S. 25, 33 (1992)).
Rittner v. Kinder, 290 F. App’x 796, 797-98 (6th Cir. 2008). Assertions of past danger do not satisfy
the imminent danger requirement; thus, Plaintiff’s allegations that prison officials mistreated him
on past occasions are not sufficient to meet the exception. See Pointer v. Wilkinson, 502 F.3d 369,
371 n.1 (6th Cir. 2007); see also Vandiver v. Vasbinder, 416 F. App’x 560, 561-62 (6th Cir. 2011)
(imminent danger must be contemporaneous with the complaint’s filing). This is particularly true
given that Plaintiff’s allegations pertain to events occurring at a facility other than his current place
of incarceration. See Day v. Maynard, 200 F.3d 665, 667 (10th Cir. 1999). Similarly, even though
Plaintiff continues to suffer consequences from the denial of adequate medical treatment, his
allegations concern past conduct rather than present risk of harm. Now that he is incarcerated at
IBC, Defendants (i.e., employees of ECF and the former director of the MDOC) are not responsible
for his present care.2
Furthermore, even assuming that prison officials continue to deny Plaintiff adequate
medical treatment, there is no indication that he is presently at risk of serious physical injury.
Although Congress also did not define “serious physical injury,” various courts have interpreted the
meaning of the phrase. In Ibrahim v. District of Columbia, 464 F.3d 3, 7 (D.C. Cir. 2006), the D.C.
Circuit concluded that a “chronic disease that could result in serious harm or even death constitutes
‘serious physical injury.’” Id. Similarly, in Brown v. Johnson, 387 F.3d 1344, 1350 (11th Cir.
2004), the Eleventh Circuit found that HIV and Hepatitis C, both chronic and potentially fatal
diseases, met the “serious physical injury” requirement. Moreover, in Ciarpaglini v. Saini, 352 F.3d
328, 330 (7th Cir. 2003), the Seventh Circuit recognized that “heart palpitations, chest pains, labored
breathing, choking sensations, and paralysis in . . . legs and back” resulting from a denial of
medication constituted a serious physical injury. Id. The Eighth Circuit also has addressed the
question, concluding that a spreading infection in the mouth that resulted from a lack of proper
dental treatment amounted to a serious physical injury. McAlphin v. Toney, 281 F.3d 709, 710 (8th
Cir. 2002). Plaintiff’s non-specific allegations regarding pain in his arm and leg are not nearly as
serious as the alleged injuries at issue in Ibrahim, Brown, Ciarpaglini, or McAlphin, and there is no
Plaintiff also sues the MDOC, but the MDOC enjoys immunity from suit under the Eleventh Amendment. See
McCoy v. Michigan, 369 F. App’x 646, 653-54 (6th Cir. 2010); Turnboe v. Stegall, No. 00-1182, 2000 W L 1679478,
at *2 (6th Cir. Nov. 1, 2000). In addition, the State of Michigan (acting through the MDOC) is not a “person” who may
be sued under § 1983 for money damages. See Lapides v. Bd. of Regents, 535 U.S. 613 (2002) (citing Will v. Mich.
Dep’t of State Police, 491 U.S. 58 (1989)).
indication that his condition will lead to a more serious injury if it is left untreated. Thus, any harm,
or risk thereof, resulting from the present failure to treat Plaintiff cannot be described as serious and
imminent under § 1915(g).
For the foregoing reasons, therefore, § 1915(g) prohibits Plaintiff from proceeding
in forma pauperis in this action. Plaintiff has twenty-eight (28) days from the date of entry of this
order to pay the entire civil action filing fee, which is $350.00. When Plaintiff pays his filing fee,
the Court will screen his complaint as required by 28 U.S.C. § 1915A and 42 U.S.C. § 1997e(c). If
Plaintiff fails to pay the filing fee within the 28-day period, his case will be dismissed without
prejudice, but he will continue to be responsible for payment of the $350.00 filing fee.
January 17, 2012
/s/ Robert J. Jonker
ROBERT J. JONKER
UNITED STATES DISTRICT JUDGE
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Clerk, U.S. District Court
399 Federal Building
110 Michigan Street, NW
Grand Rapids, MI 49503
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