Johnson #753595 v. Miller et al
OPINION ; signed by Chief Judge Robert J. Jonker (Chief Judge Robert J. Jonker, ymc)
UNITED STATES OF AMERICA
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
DARREN DEON JOHNSON,
Case No. 1:17-cv-884
Honorable Robert J. Jonker
R. MILLER et al.,
OPINION DENYING LEAVE
TO PROCEED IN FORMA PAUPERIS - THREE STRIKES
This is a civil rights action brought by a state prisoner under 42 U.S.C. § 1983.
Plaintiff is presently incarcerated with the Michigan Department of Corrections (MDOC) at the
Earnest C. Brooks Correctional Facility (LRF) in Muskegon Heights, Michigan. 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. This fee must be
paid within twenty-eight (28) days of this opinion and accompanying order. If Plaintiff fails to
pay the fee, the Court will order that this case be dismissed without prejudice. Even if the case is
dismissed, Plaintiff must pay 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 created
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 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 three of
Plaintiff’s lawsuits, the Court entered dismissals on the grounds that the cases were frivolous,
malicious, and/or failed to state a claim. See Johnson v. Quist, No. 2:12-cv-11907 (E.D. Mich.
Jul. 10, 2012); Johnson v. Kuehne, No. 2:12-cv-12878 (E.D. Mich. Jul. 31, 2012); and Johnson v.
Harrison, No. 2:12-cv-12543 (E.D. Mich. Aug. 2, 2012). Plaintiff has been denied leave to
proceed in forma pauperis because he has accumulated three strikes on at least three occasions:
Johnson v. Hulet, No. 1:13-cv-837 (W.D. Mich. Aug. 15, 2013); Johnson v. Kinder, No. 2:16-cv12698 (E.D. Mich. Aug. 23, 2016); and Johnson v. Mark, 2:17-cv-10232 (E.D. Mich. Jan. 27,
Plaintiff is clearly aware of the limit his three strikes place on his ability to proceed
in forma pauperis. He repeatedly parrots the phrase “imminent danger of serious physical injury,”
in his complaint. Plaintiff’s allegations, however, are not sufficient to fall within the “imminent
danger” exception to the three-strikes rule. 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 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.
The heart of Plaintiff’s complaint is his allegation that Defendant LRF librarian R.
Miller has refused to make photocopies of Plaintiff’s state habeas corpus pleadings at the direction
of MDOC Litigation Department Head Defendant Melody Wallace in violation of Plaintiff’s First
Amendment right to access the courts. Defendant LRF Deputy Warden Smith and Defendant
MDOC Grievance Manager Richard D. Russell are sued for denying Plaintiff’s grievance
regarding the photocopy refusal. The photocopy denial, Plaintiff contends, has caused him “panic
attacks leading to heart palpitations, chest pains, labored breathing, [choking] sensations and
paralysis . . . .” (Compl., ECF No. 1, PageID.5.) Thus, Plaintiff argues the photocopy denial has
placed him in imminent danger of serious physical injury. The Court finds Plaintiff’s allegations
of serious physical harm from the alleged denial of his First Amendment rights wholly incredible.
Therefore, § 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 does not
pay the filing fee within the 28-day period, this case will be dismissed without prejudice, but
Plaintiff will continue to be responsible for payment of the $400.00 filing fee.
October 24, 2017
/s/ Robert J. Jonker____________
Robert J. Jonker
Chief United States District Judge
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Grand Rapids, MI 49503
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