Daniel #537193 v. Givens et al
Filing
5
OPINION; signed by Judge Gordon J. Quist (Judge Gordon J. Quist, jmt)
UNITED STATES OF AMERICA
UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
ALLEN D. DANIEL,
Plaintiff,
v.
Case No. 1:13-cv-1307
Honorable Gordon J. Quist
DEBORAH GIVENS et al.,
Defendants.
____________________________________/
OPINION DENYING LEAVE
TO PROCEED IN FORMA PAUPERIS - THREE STRIKES
Plaintiff Allen D. Daniel, a prisoner incarcerated by the Michigan Department of
Corrections (MDOC) at Baraga Correctional Facility (AMF), 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
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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, having filed
over twenty civil actions. At least five of Plaintiff’s lawsuits have been dismissed as frivolous or for
failure to state a claim. See, e.g., Daniel v. Paionte et al., No. 2:08-cv-13999 (E.D. Mich. Oct. 7,
2008); Daniel v. Hofbauer et al., No. 2:08-cv-118 (W.D. Mich. Sept. 26, 2008); Daniel v. Hackel
et al., 2:08-cv-14000 (E.D. Mich. Sept. 25, 2008); Daniel v. Granholm, No. 2:08-cv-10999 (E.D.
Mich. Apr. 11, 2008); Daniel v. Caruso et al., No. 2:08-cv-11000 (E.D. Mich. Apr. 10, 2008).
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. The Sixth Circuit set forth the following general requirements for a claim of
imminent danger:
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 v. First Med. Mgmt., 508 F. App’x 488,
492 (6th Cir. 2012)] (“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 v.
Wilkinson, 502 F.3d 369, 371 n.1 (6th Cir. 2007)] (implying that past danger is
insufficient for the imminent-danger exception).
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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., 727 F.3d 580, 585 (6th Cir. 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 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’s allegations primarily concern events occurring in the years 2010 and
2011,1 while he was incarcerated at Ionia Correctional Facility (ICF). Defendants include the
Director of the MDOC and MDOC employees working at ICF. The ICF Defendants allegedly
denied Plaintiff medical care, intentionally injured him, and allowed him to be assaulted by other
prisoners. Plaintiff was transferred out of ICF in March 2011 and arrived at AMF in July 2011. He
makes no allegations concerning his present conditions. Thus, he has not alleged a present risk of
harm. The fact that he faced danger in the past is not sufficient to satisfy the imminent-danger
exception. See Rittner, 290 F. App’x at 797. Consequently, § 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
1
In 2012, Plaintiff attempted to complete the grievance appeal process for grievances that were filed in 2011.
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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: December 27, 2013
/s/ Gordon J. Quist
GORDON J. QUIST
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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