Jackson #146503 et al v. Ingham County Jail et al

Filing 9

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
PAUL EDWARD JACKSON, #146503, et al.,
PlaintiffS,
v.

Case No. 1:07-cv-1164
Honorable Janet T. Neff

INGHAM COUNTY JAIL et al.,
Defendants.
____________________________________/
OPINION DENYING LEAVE
TO PROCEED IN FORMA PAUPERIS - THREE STRIKES
Plaintiff Paul Edward Jackson, together with two other prisoners incarcerated at
Ingham County Jail, has filed a complaint pursuant to 42 U.S.C. § 1983. All Plaintiffs seek leave
to proceed in forma pauperis. This opinion and order will address Plaintiff Jackson’s request.
Because Plaintiff Jackson has filed at least three lawsuits which were dismissed for failure to state
a claim, he is barred from proceeding in forma pauperis under 28 U.S.C. § 1915(g). The civil action
filing fee is $400.00, when leave to proceed in forma pauperis is denied. Because there are multiple
plaintiffs, each Plaintiff is proportionately liable for any fees or costs. See Talley-Bey v. Knebl, 168
F.3d 884, 887 (6th Cir. 1999); In re Prison Litigation Reform Act, 105 F.3d 1131, 1137 (6th Cir.
1997). Thus, each Plaintiff is liable for $133.33. The Court will order Plaintiff Jackson to pay his
$133.33 portion of the filing fee 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.1

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Also before the Court is Plaintiff Jackson’s motion to compel Defendants to release a six-month prisoner trust
account statement (ECF No. 4). Because Plaintiff Jackson is not entitled to proceed in forma pauperis, his motion to
compel will be denied as moot.

Even if the case is dismissed, Plaintiff will be responsible for payment of the $133.33 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.

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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 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. The Court
has dismissed at least three of Plaintiff’s lawsuits for failure to state a claim. See Jackson v. Hall
et al., No. 1:03-cv-332 (W.D. Mich. May 22, 2003); Jackson v. Martin et al., No. 1:03-cv-367 (W.D.
Mich. June 30, 2003); and Jackson v. Allegan County Jail et al., No. 1:07-cv-1086 (W.D. Mich. Feb.
25, 2008). In addition, Plaintiff Jackson has been denied leave to proceed in forma pauperis in four
prior cases. See Jackson v. 48th Cir. Court et al., No. 1:07-cv-1164 (W.D. Mich. Apr. 21, 2008);
Jackson v. Merrill et al., No. 1:07-1275 (W.D. Mich. Apr. 14, 2008); Jackson v. Meijer, Inc. et al.,
No. 1:07-cv-1250 (W.D. Mich. Apr. 14, 2008); Jackson v. Nancy et al., No. 1:07-cv-1122 (W.D.
Mich. Apri. 14, 2008).
Moreover, Plaintiff’s action does not fall under the exception for an inmate under
“imminent danger of serious physical injury.” 28 U.S.C. § 1915(g). 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
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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.
Although Plaintiff alleges that his prison conditions are less than optimal and that
some conditions are unsanitary, his complaint concerns matters that have been ongoing for some
time, not matters imminently likely to cause him serious physical injury. He therefore falls short
of demonstrating entitlement to the imminent-danger exception to the three-strikes rule.
In light of the foregoing, § 1915(g) prohibits Plaintiff from proceeding in forma
pauperis in this action. Plaintiff has thirty days from the date of entry of this order to pay his entire
portion of the civil action filing fee, or $133.33. 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

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to pay the filing fee within the thirty-day period, his case will be dismissed without prejudice, but
he will continue to be responsible for payment of his $133.33 portion of the filing fee.

Dated:

March 23, 2017

/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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