Jones #146246 v. Washington et al

Filing 5

OPINION ; signed by Chief Judge Robert J. Jonker (Chief Judge Robert J. Jonker, ymc)

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

LARRY DARNELL JONES,
Plaintiff,

Case No. 1:17-cv-406

v.

Honorable Robert J. Jonker

HEIDI E. WASHINGTON et al.,
Defendants.
____________________________________/
OPINION DENYING LEAVE
TO PROCEED IN FORMA PAUPERIS - THREE STRIKES
Plaintiff Larry Darnell Jones, a prisoner incarcerated at Oaks Correctional Facility
(ECF) in Manistee, 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

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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.
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; he has filed
well over a dozen prisoner civil rights lawsuits. In more than three of Plaintiff’s lawsuits, the Court
entered dismissals that qualify as strikes under the rule. See Jones v. Durfee et al., 1:00-cv-10415
(E.D. Mich. Jan. 16, 2001) (complaint dismissed as frivolous); Jones v. Martin, et al., 5:99-cv-13
(W.D. Mich. Feb. 9, 1999) (complaint dismissed for failure to state a claim); Jones v. Wright et al.,
2:06-cv-190 (W.D. Mich. Dec. 29, 2006) (complaint dismissed for failure to state a claim).
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 §
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
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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 was obviously aware of the “imminent danger of serious physical injury”
requirement as he repeats that phrase in the first eleven paragraphs of his complaint. Simply saying
the words, however, does not satisfy the requirement. Plaintiff’s allegations center on two distinct
incidents: (1) on May 13, 2016, Bellamy Creek Correctional Officer Johnson used excessive force
when he placed Plaintiff in handcuffs; and (2) upon Plaintiff’s transfer to the Oaks Correctional
Facility on August 18, 2016, Plaintiff contends that Defendants failed to place him in a level of
protective custody sufficient to protect him. Plaintiff alleges other claims, i.e., retaliation in violation
of the First Amendment, but none of these other causes of action implicate a danger of physical
injury.
With respect to the first incident, Plaintiff has failed to demonstrate an imminent
danger of serious physical injury. The alleged past use of excessive force by a guard at a different
facility does not satisfy the requirement. The second incident warrants deeper scrutiny. Plaintiff has
been in the custody of the Michigan Department of Corrections for more than thirty years. He
alleges that he has been in some form of segregation for virtually every minute of his incarceration.
Prior to his convictions, Plaintiff was a correctional officer with the MDOC. He alleges that the
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members of several security threat groups (STGs) have a “stab on sight” order for him. He has
stayed in segregation for his own protection. Despite being subject to this danger for years, Plaintiff
does not allege any specific incidents where he was threatened with imminent physical harm.
Plaintiff transferred to ECF to be placed in the protective custody unit. There were
no available beds; so he was placed in segregation. The level of segregation he resides in now is the
same apparently sufficient protective setting Plaintiff has enjoyed for the last thirty years. He has
not alleged any incidents, much less recent incidents, to suggest that segregation is not adequate to
protect him now. Accordingly, Plaintiff’s second incident also fails to place him within the 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 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 15, 2017

/s/ Robert J. Jonker
ROBERT J. JONKER
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.”
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