Tucker #132271 v. Findlay
Filing
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OPINION; Order to issue; signed by Judge Janet T. Neff (Judge Janet T. Neff, clb)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
______
L T TUCKER #132271,
Plaintiff,
v.
Case No. 1:18-cv-180
Honorable Janet T. Neff
JAMES FINDLAY,
Defendant.
____________________________/
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 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).
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 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).
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Plaintiff has been an active litigant in the federal courts in Michigan, filing dozens
of lawsuits. In more than 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 Tucker v. Hembree et
al., 4:94-cv-105 (W.D. Mich. July 15, 1994); Tucker v. Kinney et al., 4:94-cv-101 (W.D. Mich.
June 30, 1994); Tucker v. Chapin et al., 4:94-cv-100 (W.D. Mich. June 30, 1994); Percival et al.
v. Williams et al., 1:00-cv-849 (W.D. Mich. Nov. 29, 2000). Although three 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.
Moreover, Plaintiff’s allegations do not 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.”).
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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 is suing Carson City Correctional Facility guard James Findlay. Petitioner
claims that Defendant Findlay has retaliated against Plaintiff for Plaintiff’s exercise of his First
Amendment rights. Plaintiff claims that Defendant Findlay has caused Plaintiff harm in violation
of the Eighth Amendment. Plaintiff claims further that Defendant Findlay is liable for gross
negligence. Plaintiff seeks an order declaring that Defendant Findlay has violated his rights and
an award of substantial compensatory and punitive damages.
Defendant Findlay’s wrongful conduct, as alleged by Plaintiff, occurred during
March through mid-July of 2017. On July 12, 2017, Petitioner was transferred to the facility where
he currently resides: the Baraga Correctional Facility (AMF) in Baraga, Michigan. To support a
claim that he is subject to an imminent danger, Plaintiff identifies threats to his health and safety
by AMF personnel that occurred after his transfer to AMF. (Compl., ECF No. 1, PageID.17-19.)
Plaintiff does not sue any AMF personnel and such claims would not be properly joined in this
action.1 Therefore, even if Plaintiff has identified an imminent danger, the danger is wholly
1
“[A] civil plaintiff may not name more than one defendant in his original or amended complaint unless one claim
against each additional defendant is transactionally related to the claim against the first defendant and involves a
common question of law or fact.” Proctor v. Applegate, 661 F. Supp. 2d 743, 778 (E.D. Mich. 2009). When
determining if civil rights claims arise from the same transaction or occurrence, a court may consider a variety of
factors, including, “the time period during which the alleged acts occurred; whether the acts of . . . are related; whether
more than one act . . . is alleged; whether the same supervisors were involved, and whether the defendants were at
different geographical locations.” Id. (quoting Nali v. Michigan Dep’t of Corrections, 2007 WL 4465247, at *3 (E.D.
Mich. December 18, 2007)).
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unrelated to the claims he raises in this suit. He is simply no longer subject to a danger from
Defendant Findlay.
The Second Circuit has imposed a requirement that there be some nexus between
the imminent danger alleged by the prisoner and the legal claims asserted in his complaint. See
Pettus v. Morgenthau, 554 F.3d 293, 297 (2d Cir. 2009). The Sixth Circuit has declined to address
whether § 1915(g) incorporates a nexus requirement, Vandiver v. Prison Health Services, Inc., 727
F.3d 580, 588 (6th Cir. 2013); but, the Sixth Circuit has noted that the prisoner must allege some
“relationship between the alleged danger and the claims contained in the underlying complaint.”
Shephard v. Clinton, 27 F. App’x 524, 525 (6th Cir. 2001). Here there is no such relationship.
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.
Dated:
March 1, 2018
/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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