Hale #143945 v. Gago et al
OPINION; 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
GARRY LEE HALE,
Case No. 1:17-cv-550
Honorable Paul L. Maloney
LUIS GAGO et al.,
OPINION DENYING LEAVE
TO PROCEED IN FORMA PAUPERIS - THREE STRIKES
Plaintiff Garry Lee Hale, a prisoner incarcerated at Carson City 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).
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
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
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.
Plaintiff has been an active litigant in the federal courts in Michigan. In at least
three of Plaintiff’s lawsuits, the Court entered dismissals on the grounds that they were frivolous or
failed to state a claim. See Hale v. Schaefer et al., No. 4:98-cv-148 (W.D. Mich. Nov. 24, 1998)
(failure to state a claim); Hale v. McGinnis et al., No. 2:96-cv-73193 (E.D. Mich. Aug. 30, 1996)
(frivolous); Hale v. McGinnis et al., No. 1:96-cv-518 (W.D. Mich. Oct. 24, 1996) (frivolous).
Plaintiff also has been denied leave to proceed in forma pauperis in at least one other case. See Hale
v. Fowler et al., No. 1:00-cv-767 (W.D. Mich. Oct. 26, 2000).
Moreover, Plaintiff’s allegations do not fall within the exception to the three-strikes
rule. 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 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
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, Plaintiff complains that, on September 9, 2016, Defendant Gago performed
cataract surgery on Plaintiff’s left eye. According to the medical reports attached to the complaint,
which Plaintiff incorporates by reference (see Compl., ECF No. 1, PageID.4), Dr. Gago also placed
an I-stent to treat Plaintiff’s glaucoma. (Attach. to Compl., ECF No. 1-1, PageID.24, 31.) Plaintiff
believes that the surgery and I-stent caused further impairment to his left eye. He states that he has
blurry and yelllowish vision, and continuing pain in his eye. He also complains that Defendant
Optometrist Kolk, who saw him on October 10, 2016, has provided him an improper vision
prescription and that his glasses do not work as well as he believes they should. Defendant Gago
examined him again on December 9, 2016, indicating that his vision was better than before surgery,
but he provided Plaintiff with additional eyedrops. (Id., PageID.24-26.) In addition, according to
the attachments to the complaint, Optometrist Linsley saw Plaintiff on February 28, 2017, and Dr.
Kolk also saw Plaintiff again on March 21, 2017, providing new prescription lenses, despite only
a minor change to the prescription.1 (Id., PageID.31-38.) In addition, makes a series of conclusory
The Court notes that Plaintiff’s incorporated medical records indicate that Plaintiff has continued to wear
prescription glasses that he obtained from an outside vendor, which were made with the wrong prescription, rather than
use the new prescriptions he received from the prison provider. (See Attach. to Compl., ECF No. 1-1, PageID.20, 33,
allegations against Defendant Nurse Stevens, alleging that she engaged in an intentional pattern of
medical abuse and racial discrimination. His only factual allegation is that Defendant Stevens
allegedly told the property room to confiscate Plaintiff’s personally purchased, tinted bifocals, in
exchange for non-tinted bifocals from the facility.
All of Plaintiff’s allegations concern past actions. By his own admissions and
attachments, Plaintiff has been seen and treated regularly for his eye ailments. Absolutely nothing
suggests that he is at risk, much less imminent risk, of serious future physical injury. Vandiver, 727
F.3d at 585.
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.
July 12, 2017
/s/ Paul L. Maloney
Paul L. Maloney
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.”
35, 38.) Apparently, Plaintiff refuses to use the facility-prescribed lenses for various reasons, despite having been
instructed about their use. Plaintiff had requested and received solar shields for his glasses on October 11, 2016. (Id.,
PageID.23.) He apparently thinks the prison glasses and shields are “cheap plastic.” (Compl., ECF No. 1, PageID.8.)
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