Robinson #172898 v. Stoddard

Filing 3

OPINION denying leave to proceed In Forma Pauperis- three strikes; signed by Chief Judge Paul L. Maloney (Chief Judge Paul L. Maloney, cmc)

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UNITED STATES OF AMERICA UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION DARRYL A. ROBINSON, Plaintiff, Case No. 1:14-cv-750 v. Honorable Paul L. Maloney UNKNOWN STODDARD, Defendant. ____________________________________/ OPINION DENYING LEAVE TO PROCEED IN FORMA PAUPERIS - THREE STRIKES Plaintiff Darryl Anthony Robinson, a prisoner incarcerated at Bellamy Creek Correctional Facility, filed a complaint under 42 U.S.C. § 1983. Plaintiff seeks leave to proceed in forma pauperis. Because Plaintiff has filed at least three lawsuits that were dismissed 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 Wilson, 148 F.3d at 604-06); Rodriguez v. Cook, 169 F.3d 1176, 1178-82 (9th Cir. 1999); Rivera v. -2- 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 sixty civil actions in this Court alone. The Court has dismissed more than three of Plaintiff’s lawsuits on 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 previous actions filed in this Court. Moreover, Plaintiff’s allegations do not satisfy the imminent-danger exception to the three-strikes rule of 28 U.S.C. § 1915(g). Plaintiff alleges: A life sentence in Michigan is only 20 years. My life is under imminent danger [due] to the fact [that] I’m under panel order to take medication or could be given injection if I refuse to take these medication[s]. I filed this grievance [and] never got a grievance identifier number. (Compl., docket #1, Page ID#3.) Congress did not define “imminent danger” in the PLRA, but 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 -3- 328, 330 (7th Cir. 2003); Abdul-Akbar v. McKelvie, 239 F.3d 307, 313 (3d Cir. 2001) (en banc). . . . 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). Plaintiff’s assertion that he fears for his life is wholly conclusory. See Ciarpaglini, 352 F.3d at 331. It is not supported by any facts suggesting that Plaintiff is at risk of harm, let alone a “real and proximate” danger of “serious physical injury.” Id. at 330; 28 U.S.C. § 1915(g). Under these circumstances, the imminent-danger exception is not satisfied. 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: August 4, 2014 /s/ Paul L. Maloney Paul L. Maloney Chief 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.” -4-

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