Jones #260563 v. Haske et al

Filing 4

OPINION; signed by Judge Gordon J. Quist (Judge Gordon J. Quist, jmt)

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

JESSIE E. JONES,
Plaintiff,
v.

Case No. 1:17-cv-458
Honorable Gordon J. Quist

A. HASKE et al.,
Defendants.
_______________________/

OPINION
This is an action filed by Plaintiff Jessie E. Jones, a prisoner presently incarcerated
at Central Michigan Correctional Facility (STF) in St. Louis, Michigan. The events of which
Plaintiff complains, however, occurred at the Oaks Correctional Facility (ECF) in Manistee,
Michigan, during the spring of 2014.
Plaintiff filed this action on or about May 19, 2017. On May 25, 2017, the Court
issued an order granting Plaintiff leave to proceed in forma pauperis (ECF No. 3). After that order
was issued, the Court learned that Plaintiff has filed several civil actions in this Court, at least four
of which have been dismissed as frivolous, malicious or for failure to state a claim. 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
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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
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. At the time Plaintiff filed
the instant action, this Court had dismissed 4 of his lawsuits for failure to state a claim. See
(1) Jones v. Baker, 2:06-cv-279 (W.D. Mich. Feb. 13, 2007); (2) Jones v. Ollis, 2:08-cv-155 (W.D.
Mich. Oct. 16, 2008); (3) Jones v. Bonevelle, 2:08-cv-233 (W.D. Mich. Oct. 21, 2008); and (4) Jones
v. Yoak, 2:08-cv-255 (W.D. Mich. Dec. 5, 2008). Based on these dismissals, this Court has denied
Plaintiff leave to proceed in forma pauperis in several cases: (1) Jones v. Canlas, 2:12-cv-33 (W.D.
Mich. Oct. 11, 2012); (2) Jones v. Wolak, No. 2:12-cv-284 (W.D. Mich. Aug. 13, 2012); (3) Jones
v. L’Anse Pharmacy, 2:12-cv-293 (W.D. Mich. Sept. 4, 2012); and (4) Jones v. Napel, No. 2:13-cv282 (W.D. Mich. Oct. 4, 2013).
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 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,
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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.
Here, the only allegations that implicates any danger to Plaintiff relates to May of
2014. Plaintiff alleges that during May of 2014 Defendant Haske told other ECF prisoners that
Plaintiff was a prison rat. Plaintiff claims he was thereafter assaulted by an unidentified prisoner
and that he lives in constant fear for his life.
Plaintiff does not identify any harm that has come to him since his transfer to STF.
He does not allege any present risk imminently likely to cause him serious physical injury. He
therefore falls short of demonstrating entitlement to the imminent-danger exception to the threestrikes rule.

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Conclusion
In light of the foregoing, § 1915(g) prohibits Plaintiff from proceeding in forma
pauperis in this action. Consequently, the Court’s order granting Plaintiff leave to proceed in forma
pauperis will be vacated. 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. 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.
An Order consistent with this Opinion shall be entered.

Dated: June 21, 2017

/s/ Gordon J. Quist
GORDON J. QUIST
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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