Gresham #272603 v. Snyder et al

Filing 4

OPINION; Order to issue; signed by Judge Janet T. Neff (Judge Janet T. Neff, clb)

UNITED STATES OF AMERICA
UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

MICHAEL GRESHAM,
Plaintiff,

Case No. 1:12-cv-143

v.

Honorable Janet T. Neff

RICK SNYDER et al.,
Defendants.
____________________________________/
OPINION DENYING LEAVE
TO PROCEED IN FORMA PAUPERIS - THREE STRIKES
Plaintiff Michael Gresham, a prisoner incarcerated at Ionia Maximum Correctional
Facility, filed a complaint pursuant to 42 U.S.C. § 1983. Plaintiff seeks leave to proceed in forma
pauperis. 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).
Discussion
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 1288.
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. The statute does allow an exception for a prisoner who is “under imminent danger of
serious physical injury.” 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

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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 extremely active litigant in this Court, having filed more than
thirty civil actions. The Court has dismissed more than three of Plaintiff’s actions for failure to state
a claim. See Gresham v. Caruso et al., No. 2:10-cv-196 (W.D. Mich. Oct. 27, 2011); Gresham v.
Wolak et al., No. 2:10-cv-239 (W.D. Mich. July 25, 2011); Gresham v. Caruso et al., No. 2:10-cv195 (W.D. Mich. Apr. 11, 2011); Gresham v. Paine et al., No. 1:10-cv-1146 (W.D. Mich. Mar. 8,
2011); Gresham v. Caruso et al., No. 1:10-cv-1038 (W.D. Mich. Jan. 26, 2011); Gresham v. Verville
et al., No. 2:10-cv-198 (W.D. Mich. Jan. 19, 2011); Gresham v. Mich. Dep’t of Corr. et al., No.
2:07-cv-241 (W.D. Mich. June 9, 2008). In addition, the Court previously has denied Plaintiff leave
to proceed in forma pauperis because he has three strikes. See Gresham v. Mutschler et al., No.
2:12-cv-9 (W.D. Mich. Feb. 12, 2012); Gresham v. Violetta et al., No. 2:12-cv-24 (W.D Mich. Feb.
6, 2012); Gresham v. Dahl et al., No. 2:12-cv-21 (W.D. Mich. Feb. 6, 2012); Gresham v. Napel et
al., No. 2:11-cv-520 (W.D. Mich. Feb. 6, 2012); Gresham v. Snyder et al., No. 2:12-cv-5 (W.D.
Mich. Jan. 27, 2012); Gresham v. LaChance et al., No. 2:11-cv-231 (W.D. Mich. June 24, 2011);
Gresham v. Canlis et al., No. 2:11-cv-179 (W.D. Mich. June 9, 2011); Dennis v. Canlis, No. 2:11cv-186 (W.D. Mich. June 6, 2011).
This is the seventh case filed by Plaintiff in less than two months in which he seeks
to invoke the statutory exception for a prisoner who is under imminent danger of serious physical
injury. See 28 U.S.C. § 1915(g). The Sixth Circuit has recognized the standard previously adopted
by other circuit courts:

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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); 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); Pointer v. Wilkinson, 502 F.3d 369, 371 n.1 (6th Cir. 2007) (holding that
assertions of past danger do not satisfy the imminent-danger exception).
Throughout his complaint, which is difficult to follow, Plaintiff makes a variety of
sweeping assertions that he is in imminent danger, but makes few specific factual allegations in
support of his claim. He names 46 Defendants, including the governor, departments of the state,
officials of the central administration of the Michigan Department of Corrections, and officials at
the Marquette Branch Prison. Plaintiff claims that Defendants collectively have failed adequately
to treat certain lumps in his genital area and two hernias. He also alleges that the undifferentiated
Defendants have forced him to take psychotropic medications to treat mental illness, which he
denies having. Plaintiff suggests that the Defendants collectively are attempting to make him look
mentally ill in order to prevent him from successfully litigating another lawsuit, in which he claims
that two employees of the Ionia Maximum Correctional Facility raped him on July 10, 2009. See
Gresham v. Granholm et al., No. 2:09-cv-231 (W.D. Mich.). The bulk of Plaintiff’s 53-page
complaint, and of his 121 pages of rambling attachments, consists of a lengthy address to “Andrea”
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(apparently, Defendant Psychiatric Nurse Practitioner Andrea Mosley). Plaintiff repeatedly advises
“Andrea” to read certain materials about race and religion and to make her medical determination
based on Plaintiff’s belief system. The following excerpt (verbatim) is representative of the
irrationality of the complaint:
First I’d like to address Facts My Theory is not a (delusion) This is Another Attempt
at Pascoe, Eyke, Oshier, Bushongs, Patel, Wolaks belittling of My Educational and
Scientific Achievement. . You know what? Andrea Something you should notice
They are all white. . And I apologize if My insights upset or/enrage You But You
should Know I do not hate whites I have white Brothers and sisters I love.
But traditionally The White Male has been a Barbarian seeking to overtake by WAR,
Pilliage, Rape and at last Indoctrination. Something that You have been coerced to
do out of Fear For Your Job and respect on The Job.
This is called A system (of oppression)
(Compl., docket #1, Page ID#14.) Such irrational allegations fall far short of demonstrating that
Plaintiff is in imminent danger of serious bodily injury.
In addition, Plaintiff previously filed a complaint with similar broad allegations about
being involuntarily treated with psychotropic medications. See Gresham v. Snyder et al., No. 2:12cv-5 (W.D. Mich.). In that action, the Court determined that Plaintiff’s largely irrational and
conclusory allegations did not fall within the imminent-danger exception to the three-strikes rule.
Moreover, since the filing of the previous lawsuit, Plaintiff has been transferred from the Marquette
Branch Prison to the Ionia Maximum Correctional Facility. As previously discussed, assertions of
past danger do not satisfy the imminent-danger exception. Rittner, 290 F. App’x at 797-98; Pointer,
502 F.3d at 371 n.1. Because the Defendants in this action are at the Marquette Branch Prison,
Plaintiff no longer is at risk from any allegedly inadequate treatment provided by those Defendants.
For all these reasons, Plaintiff’s allegations do not fall within the exception to the three-strikes rule
because he does not allege facts establishing that he is in imminent danger of serious physical injury.
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In light of the foregoing, § 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.

Dated: March 6, 2012

/s/ Janet T. Neff
Janet T. Neff
United States District Judge

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Clerk, U.S. District Court
399 Federal Building
110 Michigan Street, NW
Grand Rapids, MI 49503
All checks or other forms of payment shall be payable to “Clerk, U.S. District Court.”

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