Staffney #122425 v. Palmer et al

Filing 4

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

HAROLD STAFFNEY,
Plaintiff,

Case No. 1:17-cv-403

v.

Honorable Janet T. Neff

CARMEN D. PALMER,
Defendants.
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OPINION DENYING LEAVE
TO PROCEED IN FORMA PAUPERIS - THREE STRIKES
Plaintiff Harold Staffney, a prisoner incarcerated at Michigan Reformatory in Ionia,
Michigan, 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
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 that count as strikes. See Staffney v. Glynn,
No. 1:94-cv-56 (W.D. Mich. Feb. 11, 1994) (complaint dismissed as frivolous); Staffney v. Benson,
4:96-cv-55 (W.D. Mich. March 12, 1996) (complaint dismissed as frivolous); Staffney v. Caruso et
al., No. 2:95-cv-98 (W.D. Mich. Mar. 20, 1995) (complaint dismissed as frivolous); Staffney v. Allen
et al., No. 1:97-cv-891 (W.D. Mich. Jun. 18, 1998) (complaint dismissed for failure to state a claim);
Staffney v. Cohle et al., No. 2:16-cv-131 (W.D. Mich. Jun. 28, 2016) (complaint dismissed for
failure to state a claim). Although several 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.
The PLRA offers relief from the three-strikes rule where an inmate alleges “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 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 §
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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.
Plaintiff does not allege the words “imminent danger of serious physical injury;” but,
his entire complaint is based on the premise that the conditions of his confinement at the Michigan
Reformatory are unsafe. He contends that the facility is overcrowded; that his floor has no
evacuation plan in the event of fire; that the ventilation is inadequate and the ventilation ducts are
dirty; that the water is contaminated with lead, other toxic substances, or disease; that the water flow
is inadequate; and that the prison has black mold, mildew, and mold-type fungi. Although Plaintiff
does not identify any specific physical harm occurring to him from these conditions, he does note
that he has a chronic heat illesss that manifests in “a slight problem inhaling and exhaling” when it
is hot and humid; vision problems, and chronic fatigue. Although Plaintiff does identify health risks
that flow from the conditions of which he complains, it does not appear that they are either presently
causing him, or will imminently cause him, serious physical injury. Indeed, if the risk were so great
as to rise to an imminent danger, one would expect these apparently long-standing conditions to
have resulted in physical serious injury to at least one of the hundreds of inmates at the Michigan
Reformatory already.
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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: May 10, 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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