Lacey #173035 v. Heyns et al
Filing
6
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
CEDRIC LAMONT LACEY,
Plaintiff,
Case No. 1:13-cv-957
v.
Honorable Janet T. Neff
DANIEL H. HEYNS et al.,
Defendants.
____________________________________/
OPINION DENYING LEAVE
TO PROCEED IN FORMA PAUPERIS - THREE STRIKES
Plaintiff Cedric Lamont Lacey, a prisoner incarcerated at Saginaw 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
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 active litigant in the federal courts in Michigan. In more than
three of Plaintiff’s lawsuits, the Court entered dismissals on the grounds of frivolous, malicious or
failed to state a claim. See Lacey v. Ollila et al., No. 2:95-cv-279 (W.D. Mich. Jan. 17, 1996); Lacey
v. Maki, No. 2:94-cv-226 (W.D. Mich. Nov. 22, 1994); Lacey v. McGinnis et al., No. 2:94-cv-189
(W.D. Mich. Oct. 25, 1994); Lacey v. Mich. Dep’t of Corr. et al., No. 2:94-cv-64 (W.D. Mich. May
16, 1994); Lacey v. McGinnis et al., No. 2:94-cv-17 (W.D. Mich. Mar. 24, 1994); Lacey v. Cole et
al., 2:93-cv-268 (W.D. Mich. Feb. 11, 1994); Lacey v. Lajoire et al., No. 2:93-cv-248 (W.D. Mich.
Jan. 14, 1994). Although all of the dismissals were entered before enactment of the PLRA on April
26, 1996, the dismissals nevertheless count as strikes. See Wilson, 148 F.3d at 604. In addition,
Plaintiff has been denied leave to proceed in forma pauperis in at least three cases. See Lacey v.
Stine et al., No. 2:97-cv-328 (W.D. Mich. Jan. 29, 1999); Lacey v. Mich. Dep’t of Corr. et al., No.
2:97-cv-294 (W.D. Mich. Feb. 26, 1998); Lacey v. Hall, No. 2:97-cv-268 (W.D. Mich. Feb. 26,
1998).
Moreover, Plaintiff’s allegations do not fall within the exception to the three-strikes
rule because he does not allege any facts establishing that he is under imminent danger of serious
physical injury. Plaintiff alleges that he was sexually assaulted by another prisoner while he was
housed at the Oaks Correctional Facility and the Kinross Correctional Facility. He alleges that
Defendants were aware that he was at risk and took no action.
The Sixth Circuit set forth the following general requirements for a claim of
imminent danger:
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In order to allege sufficiently imminent danger, we have held that “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.” Rittner v. Kinder, 290 F. App’x
796, 797 (6th Cir. 2008) (internal quotation marks omitted). “Thus a prisoner’s
assertion that he or she faced danger in the past is insufficient to invoke the
exception.” Id. at 797–98; see also Taylor, 508 F. App’x at 492 (“Allegations of past
dangers are insufficient to invoke the exception.”); Percival v. Gerth, 443 F. App’x
944, 946 (6th Cir. 2011) (“Assertions of past danger will not satisfy the ‘imminent
danger’ exception.”); cf. Pointer, 502 F.3d at 371 n.1 (implying that past danger is
insufficient for the imminent-danger exception).
In addition to a temporal requirement, we have explained that the allegations
must be sufficient to allow a court to draw reasonable inferences that the danger
exists. To that end, “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, or are clearly baseless (i.e. are fantastic or delusional and rise to the level
of irrational or wholly incredible).” Rittner, 290 F. App’x at 798 (internal quotation
marks and citations omitted); see also Taylor, 508 F. App'x at 492 (“Allegations that
are conclusory, ridiculous, or clearly baseless are also insufficient for purposes of the
imminent-danger exception.”).
Vandiver v. Prison Health Serv., Inc., No. 11-1959, __ F.3d __, 2013 WL 4309118, at *4 (6th Cir.
Aug. 16, 2013). A prisoner’s claim of imminent danger is subject to the same notice pleading
requirement as applied to prisoner complaints. Id. Consequently, a prisoner must allege facts in the
complaint from which the court could reasonably conclude that the prisoner was under an existing
danger at the time he filed his complaint, but the prisoner need not affirmatively prove those
allegations. Id.
Plaintiff alleges only that he faced danger in the past. Since the time of the alleged
assaults, Plaintiff has been moved to the Saginaw Correctional Facility. Where, as here, a prisoner
alleges harms that occurred at a separate prison facility and sues only Defendants located at that
facility or facilities, he clearly cannot allege that he remains in imminent danger. See Day v.
Maynard, 200 F.3d 665, 667 (10th Cir. 1999); see also Vandiver, 2013 WL 4309118, at *4
(requiring that the danger of serious injury be real and proximate at the time the complaint is filed).
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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 $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
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.
Dated: October 2, 2013
/s/ Janet T. Neff
Janet T. Neff
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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