LeBlanc v. Kalamazoo Police Department et al

Filing 6

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

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
______
JEFFREY R. LEBLANC,
Plaintiff,
v.

Case No. 1:18-cv-487
Honorable Robert J. Jonker

KALAMAZOO POLICE DEPARTMENT
et al.,
Defendants.

____________________________/
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 sought leave to proceed in forma pauperis (ECF No. 2), and the magistrate judge initially
granted that motion (ECF No. 4). However, upon further review, the Court concludes that leave
to proceed in forma pauperis was improvidently granted. 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 therefore will vacate the
order granting pauper status (ECF No. 4) and 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

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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 far 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, e.g., LeBlanc v. Lightvoet, No. 1:16-cv540 (W.D. Mich. May 27, 2016); LeBlanc v. Kalamazoo Cnty. Sheriff, No. 1:14-cv-305 (W.D.
Mich. July 29, 2014); LeBlanc v. Michigan, No. 1:14-cv-552 (W.D. Mich. June 19, 2014); LeBlanc
v. Kalamazoo Cnty. Gov’t, No. 1:14-cv-308 (W.D. Mich. May 21, 2014); LeBlanc v. Michigan,
No. 1:14-cv-237 (W.D. Mich. Mar. 26, 2014).1 Plaintiff also has been denied leave to proceed in
forma pauperis on dozens of occasions, because his claims fail to meet the imminent-danger
exception to the three-strikes rule.
So, too, in this case: 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.

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Since March of 2014, Jeffrey LeBlanc has been a plaintiff in over 100 lawsuits filed in this district or in the Eastern
District of Michigan.

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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.
Plaintiff alleges constitutional violations committed by some Defendants in
connection with Plaintiff’s criminal prosecutions in 2008 and 2012, as well as constitutional
violations by other Defendants with respect to the conditions of his custody. Plaintiff contends
that he suffered sexual assaults at a number of prisons over the years, as the result of his allegedly
illegal incarceration. However, the most recent allegation of assault alleged by Plaintiff occurred
2016, nearly two years before he filed his complaint. On these allegations, Plaintiff fails to show
that any danger he faces is imminent.
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

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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:

June 9, 2018

/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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