White #228524 v. McKee et al

Filing 3

OPINION Denying Leave to Proceed In Forma Pauperis - Three Strikes; signed by District Judge Paul L. Maloney (Judge Paul L. Maloney, cmc)

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

MARK EARL WHITE,
Plaintiff,

Case No. 1:16-cv-601

v.

Honorable Paul L. Maloney

KEN McKEE et al.,
Defendants.
____________________________________/
OPINION DENYING LEAVE
TO PROCEED IN FORMA PAUPERIS - THREE STRIKES
Plaintiff Mark Earl White, a prisoner incarcerated at Oaks 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 cla1082 (W.D. Mich. ims 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 vcv. 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. In more than
three of Plaintiff’s lawsuits, the court entered dismissals on the grounds that Plaintiff’s cases were
frivolous, malicious or failed to state a claim. See White v. Caruso, No. 1:08-cv-80 (W.D. Mich.
Feb. 14, 2008) (fails to state a claim); White v. Caruso, 1:08-cv-10057 (E.D. Mich.Mar. 17, 2008)
(frivolous and fails to state a claim); White v. Sixth Circuit Ct., 2:95-cv-71764 (E.D. Mich. June 23,
1995). Judges of the Eastern District have already determined that plaintiff has accumulated “three
strikes” under section 1915(g). White v. Saginaw County Jail, No. 2:09-cv-13470 (E.D. Mich. Sept.
14, 2009); White v. Heyns, et al., No. 5:13-cv-12104 (E.D. Mich. May 24, 2013); White v. United
States District Courts of Michigan, No. 5:13-cv-14428 (E.D. Mich. Oct. 25, 2013). The undersigned
made the same determination in White v. Correctional Medical Services, Inc., No. 1:10-cv-1082
(W.D. Mich. May 11, 2011). Although one 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.
Plaintiff is aware that he is barred from proceeding in forma pauperis by his three
strikes absent imminent danger of serious physical injury. He specifically requests that the court
grant him “in forma pauperis status under [the] imminent danger exception . . . .” (ECF No. 1,
PageID.9.)
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 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 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 that which applies 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.
The Second Circuit has imposed an additional requirement that there be some nexus
between the imminent danger alleged by the prisoner and the legal claims asserted in his complaint.
See Pettus v. Morgenthau, 554 F.3d 293, 297 (2d Cir. 2009). The Sixth Circuit has declined to
address whether the § 1915(g) incorporates a nexus requirement. Vandiver, 727 F.3d at 588.
Plaintiff sues three Defendants: MDOC Deputy Director of Prisoner Housing and
Transfer Ken McKee, Muskegon Correctional Facility Prisoner Counselor J. Sowa, and Oaks
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Correctional Facility Director of Law Library Services (unknown) Murphy. He raises factually
distinct claims against each Defendant. All of his claims in this action are presented against the
backdrop of prior difficulty Plaintiff has experienced with a particular prison gang. The genesis of
that difficulty is the subject of a lawsuit pending in the United States District Court for the Eastern
District of Michigan, White v. Jindal et al., No. 2:13-cv-15073. Put simply, Plaintiff has suffered
attacks and threats of attacks at the hands of members of a prison gang because those members
believe that Plaintiff has informed on one or more gang members. In White v. Jindal, Plaintiff seeks
damages for the actions of certain defendants in creating the problem with the gang and then failing
to protect Plaintiff from the gang members. There is no overlap between the defendants in the two
lawsuits.
In this suit Plaintiff alleges that on March 8, 2016, Defendant McKee ordered Plaintiff
transferred from Lakeland Correctional Facility to Muskegon Correctional Facility. Plaintiff states
he warned Defendant Sowa of the danger from the prison gang, but Defendant Sowa refused to
listen. On March 28, 2016, Plaintiff was attacked by a prison gang member. He was placed in
protective custody. On April 4, 2016, Defendant Sowa informed Plaintiff that Defendant McKee
ordered Plaintiff tranferred to Oaks Correctional Facility. Defendant Sowa told Plaintiff that if
Plaintiff asked for protection there, he would be placed permanently in protective housing. Defendant
Sowa also informed Plaintiff that Sowa had given away Plaintiff’s television.
On April 8, 2016, Plaintiff was transferred to Oaks Correctional Facility. He warned
the officials there about his problems with the prison gang, but he was ignored. On April 18, 2016,
Plaintiff complained specifically to Prison Counselor Pearson. Pearson offered Plaintiff protective

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housing. Plaintiff refused because his current cell assignment was safe. Plaintiff signed a protection
waiver.
That same day, Deputy Warden Clouse ordered Plaintiff moved to a different cell
block and cell. Again, however, Plaintiff viewed the new cell assignment as safe. The next day
Corrections Officer Hoffman ordered Plaintiff to move to another cell. In that cell, Plaintiff was
bunked with Prisoner Fantroy. Plaintiff had been warned that Prisoner Fantroy was a member of the
prison gang. Plaintiff objected, but he was ordered to move, so he did.
On April 20, 2016, as Plaintiff was leaving his cell, Prisoner Fantroy demanded coffee
or “something,” as he grabbed his own crotch, as rent. Plaintiff immediately sought protection. He
spoke to Prisoner Counselor (unknown) McCray. During the interview, Resident Unit Manager
(unknown) Brinkly asked Plaintiff who threatened Plaintiff. At the time Prisoner Fantroy was
standing outside the open office door. Plaintiff was placed in segregation.
On April 27, 2016, Plaintiff met with Deputy Warden Clouse and Resident Unit
Manager (unknown) Surbrook. Plaintiff asked to be transferred to one of three facilities that were
identified as being free of the members of that prison gang in an affidavit filed by the defendants two
years ago in the Eastern District of Michigan case. (Exhibit A, Affidavit of Edward E. Mize, ECF
No. 47-2, PageID.410-15.) Resident Unit Manager Surbrook refused, informing Plaintiff that he
would remain in segregation at Oaks until a bed opened up in the protective housing unit.
Plaintiff alleges that while he was waiting in segregation, Defendant Murphy
interfered with Plaintiff’s access to the courts. Defendant Murphy accomplished the interference
by refusing use of the law library, requiring extras steps to obtain an indigent copy loan, refusing to

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permit Plaintiff a Federal Rules book, and refusing to permit Plaintiff the appropriate number of
library items with the frequency required by MDOC policy.
As of the date Plaintiff signed his complaint, May 19, 2016, he remained in
segregation. He indicates that getting out of segregation and into protective housing could be
dangerous because the prison gang could place someone in protective housing to harm him. Plaintiff
has informed the Oaks Security Classification Committee staff, Inspector Spencely, Psychologist
Marshall, and Resident Unit Manager Surbrook of this danger, but they all have ignored him.
Plaintiff has failed to establish the requisite imminent danger of serious physical
injury. He does not allege that he faces any risk of serious physical injury in the temporary
segregation setting. He acknowledges that he can stay in that setting for the duration of his stay at
Oaks. Moreover, he alleges only the possibility that his potential cellmate in protective housing at
Oaks might pose a risk of injury. That “possibility” is neither sufficiently real nor sufficiently
proximate to satisfy the requirements necessary to fit within the imminent danger exception.
Plaintiff has twice found cellmate arrangements he considered safe even outside the confines of
protective housing. Plaintiff’s allegations, therefore, do not fall within the exception to the threestrikes rule.
Additionally, if there were a nexus requirement, Plaintiff has certainly failed to meet
it here with respect to any of his claims. None of the three Defendants are responsible for any
imminent threat against Plaintiff. Even if Defendants Sowa or McKee were liable for the attack on
Plaintiff at Muskegon Correctional Facility or for the loss of Plaintiff’s television, the success of
such claims would say nothing about the possibility of danger Plaintiff alleges from a move to
protective housing at Oaks. Defendant McKee’s transfer of Plaintiff to Oaks did not create the
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danger, Plaintiff has found two “safe” housing arrangements there in general population as well as
his current safe haven in segregation. Defendant Murphy’s alleged interference with Plaintiff’s
access to the courts similarly has played no role in creating the imminent danger Plaintiff alleges.
Any possibility of danger alleged by Plaintiff is attributable to Oaks staff that Plaintiff has not
included in this action. There is no meaningful connection between the claims he has raised against
these Defendants and the possibility of danger he alleges.
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:

June 13, 2016

/s/ Paul L. Maloney
Paul L. Maloney
United States District Judge

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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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