Robinson #172898 v. Royster

Filing 3

OPINION; signed by Judge Robert Holmes Bell (Judge Robert Holmes Bell, sdb)

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

DARRYL A. ROBINSON,
Plaintiff,

Case No. 1:13-cv-494

v.

Honorable Robert Holmes Bell

LARRY S. ROYSTER,
Defendant.
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OPINION DENYING LEAVE
TO PROCEED IN FORMA PAUPERIS - THREE STRIKES
Plaintiff Darryl A. Robinson, a prisoner incarcerated at Richard A. Handlon
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 $400.00 civil action filing fee
applicable to those not permitted to proceed in forma pauperis within twenty-eight (28) days of this
opinion and accompanying order. 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 $400.00 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

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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, having filed
approximately forty civil actions in this Court. In more than three of Plaintiff’s lawsuits, the Court
has entered dismissals on the grounds that they were frivolous, malicious, or failed to state a claim.
See Robinson v. Lesatz et al., No. 2:05-cv-217 (W.D. Mich. Nov. 7, 2005); Robinson v. Luoma, No.
2:05-cv-218 (W.D. Mich. Nov. 7, 2005); Robinson v. Kutchie et al., No. 2:05-cv-211 (W.D. Mich.
Oct. 28, 2005); Robinson v. Snow et al., No. 2:05-cv-212 (W.D. Mich. Oct. 28, 2005); Robinson v.
Etelamaki et al., No. 2:05-cv-200 (W.D. Mich. Oct. 4, 2005); Robinson v. Caruso et al., No.
2:05-cv-191 (W.D. Mich. Sept. 21, 2005); Robinson v. Meni et al., No. 2:05-cv-192 (W.D. Mich.
Sept. 19, 2005); and Robinson v. Etelamaki, No. 2:05-cv-194 (W.D. Mich. Sept. 19, 2005). In
addition, Plaintiff has been denied leave to proceed in forma pauperis under the three-strikes rule
in more than thirty prior actions in this Court.
In order to avoid the consequences of the three-strikes rule, Plaintiff asserts that he
is in imminent danger within the meaning of 28 U.S.C. § 1915(g). He contends that Defendant
Royster denied his request to file a peremptory motion in 2005:
I want my [peremptory] reversal to go [through] or be allowed to file a [peremptory]
reversal motion with issues in it once its proven at a trial that [peremptory] motions
exist. My life is under imminent danger because this motion does exist[.] I cannot
cloth[e] myself[,] I cannot get medical kites returned to me[,] grievances are not
being processed [and] [I] cannot get out for food. My bunkie can kill me and that[’s]
highly possible.
***
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I want all misconduct[s] expunged [from] my file since 6-8-2005 seeing that had my
motion for [peremptory] went through . . . I might have been discharged seeing that
life in Michigan is 20 years. My wife left me which place[s] my life under imminent
danger[.] God said till death do us part[,] she was my inspiration to keep me strong
in hard times such as prison life.
(Compl, docket #1, Page ID#4.)
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 definition adopted by other circuit courts:
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)).
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Rittner v. Kinder, 290 F. App’x 796, 797-98 (6th Cir. 2008).
Plaintiff asserts the following claims of imminent danger: Plaintiff’s bunkie “can kill
him,” he cannot clothe himself, obtain medical kites or food, and his wife left him. (Compl., Page
ID#4.) First, if Plaintiff’s imminent-danger claims relate to the filing of his peremptory motion in
2005, those claims are insufficient to invoke the exception because they concern past events. See
Rittner, 290 F. App’x at 797-98 (citations omitted); 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).
Even if Plaintiff’s claims concern deprivations at the time he filed his complaint, he still fails to
satisfy the imminent-danger exception. Plaintiff alleges that his bunkie may take his life. However,
Plaintiff makes no allegation that his roommate presently presents a serious risk to his life. Plaintiff
merely says that it is “highly possible.” (Compl, docket #1, Page ID#4.) Accordingly, it does not
appear that the alleged imminent danger from Plaintiff’s roommate is “real and proximate.” See
Rittner, 290 F. App’x at 797-98 (citation omitted). As to Plaintiff’s claims that he is under imminent
danger because he cannot clothe himself, obtain medical kites or food and his wife left him, those
claims are entirely conclusory or ridiculous. See id. at 797-98. Plaintiff has not elaborated on when
or why he was not able to clothe himself, obtain medical kites or food. Moreover, the fact that
Plaintiff’s wife left him is an absolutely ridiculous assertion for imminent danger. For all these
reasons, the imminent-danger exception is unavailable.
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 $400.00. 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
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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 $400.00 filing fee.

Date:

June 5, 2013

/s/ Robert Holmes Bell
ROBERT HOLMES BELL
UNITED STATES DISTRICT JUDGE

SEND REMITTANCES TO THE FOLLOWING ADDRESS:
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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