Hardy #159525 v. Thompson et al
Filing
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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
DAVID HARDY,
Plaintiff,
Case No. 1:14-cv-896
v.
Honorable Janet T. Neff
UNKNOWN THOMPSON et al.,
Defendants.
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OPINION DENYING LEAVE
TO PROCEED IN FORMA PAUPERIS - THREE STRIKES
Plaintiff David Hardy, a prisoner incarcerated at Bellamy Creek 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.
Hampton, 106 F.3d 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 that Plaintiff’s allegations
were frivolous or failed to state a claim. See Hardy v. Agee et al., No. 2:13-cv-230 (W.D. Mich.
Aug. 20, 2014); Hardy v. Adams et al., No. 2:13-cv-37 (W.D. Mich. Oct. 17, 2013); Hardy v.
McKechnie et al., No. 2:12-cv-317 (W.D. Mich. Jan. 24, 2013); Hardy v. Winnicki et al., No. 2:09cv-259 (W.D. Mich. Jan. 7, 2010).
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 recently summarized 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).
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
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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 Services, 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 complains about Defendants’ past refusals to adequately accommodate his
medical needs. He asserts that, during 2013, Defendants refused to issue him details that
appropriately accommodated his medical condition and assigned him to prison jobs with deliberate
indifference to whether the jobs would aggravate Plaintiff’s serious medical conditions. However,
on December 16, 2013, a physician’s assistant finally issued a sufficiently restrictive work detail,
which fully accommodated Plaintiff’s limitations. Defendant Behler reclassified Plaintiff’s job
status on January 10, 2014. Plaintiff alleges no subsequent conduct by any of the named
Defendants.
In sum, he alleges only past constitutional violations and injuries, which are
insufficient to demonstrate that Plaintiff was in imminent danger of serious physical injury at the
time he filed his complaint. Id.
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.
Dated: September 10, 2014
/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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