Jackson #748757 v. Novak et al
OPINION; signed by Magistrate Judge Ray Kent (fhw)
Case 1:21-cv-01030-RSK ECF No. 14, PageID.38 Filed 01/11/22 Page 1 of 7
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
DOUGLAS CORNELL JACKSON,
Case No. 1:21-cv-1030
Honorable Ray Kent
UNKNOWN NOVAK 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. The
action originally was filed in the Eastern District of Michigan but was transferred to this Court on
venue grounds. (ECF No. 3.) Pursuant to 28 U.S.C. § 636(c) and Rule 73 of the Federal Rules of
Civil Procedure, Plaintiff consented to proceed in all matters in this action under the jurisdiction
of a United States magistrate judge. (ECF No. 6.)
Plaintiff seeks leave to proceed in forma pauperis. (ECF No. 2.) 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 $402.00 civil action filing fees applicable to those not permitted to
proceed in forma pauperis.1 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
The filing fee for a civil action is $350.00. 28 U.S.C. § 1914(a). The Clerk is also directed to collect a miscellaneous
administrative fee of $52.00. 28 U.S.C. § 1914(b); https://www.uscourts.gov/services-forms/fees/district-courtmiscellaneous-fee-schedule. The miscellaneous administrative fee, however, “does not apply to applications for a
writ of habeas corpus or to persons granted in forma pauperis status under 28 U.S.C. § 1915.” Id.
Case 1:21-cv-01030-RSK ECF No. 14, PageID.39 Filed 01/11/22 Page 2 of 7
dismissed without prejudice. Even if the case is dismissed, Plaintiff must pay the $402.00 filing
fees 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
Case 1:21-cv-01030-RSK ECF No. 14, PageID.40 Filed 01/11/22 Page 3 of 7
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).
Plaintiff has been an active litigant in the federal courts in Michigan. 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 Jackson v. Berean, No. 1:18-cv-1075 (W.D.
Mich. Mar. 19, 2019); Jackson v. Bouchard, No. 2:16-cv-246 (W.D. Mich. Dec. 21, 2016);
Jackson v. Evans, No. 2:11-cv-13524 (E.D. Mich. Aug. 31, 2011). Plaintiff also has been denied
leave to proceed in forma pauperis on the basis of the three-strikes rule at least eight times. See
Jackson v. Hoffman, No. 2:21-cv-175 (W.D. Mich. Sept. 2, 2021); Jackson v. Miller, No. 2:21-cv162 (W.D. Mich. Aug. 12, 2021); Jackson v. Dove, No. 2:21-cv-53 (W.D. Mich. Mar. 29, 2021);
Jackson v. Kemp, No. 2:21-cv-33 (W.D. Mich. Mar. 3, 2021); Jackson v. McKee, No. 2:21-cv-23
(W.D. Mich. Mar. 1, 2021); Jackson v. Pynnonen, No. 2:21-cv-26 (W.D. Mich. Feb. 17, 2021);
Jackson v. Taskila, No. 2:20-cv-38 (W.D. Mich. Apr. 8, 2020); Jackson v. Berean, No. 1:19-cv380 (W.D. Mich. Sept. 27, 2019).
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.
Case 1:21-cv-01030-RSK ECF No. 14, PageID.41 Filed 01/11/22 Page 4 of 7
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 gravamen of Plaintiff’s complaint involves allegations that Defendants Novak
and Simon have violated his right to access the courts by impeding his ability to litigate his habeas
corpus action pending in the Eastern District of Michigan. (ECF No. 1.) He maintains that their
actions have caused him to suffer stress and “excruciating” headaches, as well as a rise in blood
pressure. (Id., PageID.13.) Plaintiff avers that such symptoms put him “at risk of a future heart
attack and/or stroke.” (Id.) He alleges that Defendants’ actions have also caused him to suffer
shortness of breath, insomnia, and fatigue. (Id., PageID.16.) Plaintiff asserts that Defendants’
interference with his physical liberty results in a “present existing continuing imminent danger of
a serious physical injury” because he is suffering the ailments noted above. (Id., PageID.20–21.)
Plaintiff’s allegations that he is at risk of suffering a stroke or heart attack if
Defendants continue to interfere with his access to the courts are conclusory and speculative.
Moreover, if stress resulting from alleged constitutional violations were sufficient to satisfy the
Case 1:21-cv-01030-RSK ECF No. 14, PageID.42 Filed 01/11/22 Page 5 of 7
imminent danger requirement, the requirement would be rendered meaningless. Such a reading of
the statute would be inconsistent with the general rule of statutory construction, which requires
that exceptions to a rule be read narrowly, so as not to undermine the general rule. See Comm’r of
Internal Revenue v. Clark, 489 U.S. 726, 739 (1989) (“In construing provisions . . . in which a
general statement of policy is qualified by an exception, we usually read the exception narrowly
in order to preserve the primary operation of the provision.”); 2A Norman J. Singer, Statutes and
Statutory Construction, § 47.11 at 246–47 (6th ed. 2000) (“[W]here a general provision in a statute
has certain limited exceptions, all doubts should be resolved in favor of the general provision rather
than exceptions.”). Exceptions must not be interpreted so broadly as to swallow the rule. See
Cuomo v. Clearing House Ass’n, L.L.C., 557 U.S. 519, 530 (2009) (rejecting an interpretation of
a statutory exception that “would swallow the rule”).
Plaintiff is not the first prisoner to offer a conclusory and speculative claim of
stress-induced health consequences in an attempt to establish that he is in imminent danger of
serious physical injury. For example, in Warren v. Ellis Cnty., Tex., 519 F. App’x 319 (5th Cir.
2013), prisoner Warren argued that he was “under constant stress resulting from the denial of his
constitutional rights, subjecting him to a potential risk of, among other things, hypertension, heart
and immune system problems, fatigue, depression, and weight gain, all of which could shorten his
life expectancy.” Id. at 320. The Fifth Circuit Court of Appeals concluded that “the possibility of
future medical problems resulting from stress [did] not show that [Warren] faced an imminent
danger of serious physical injury at the relevant time.” Id. Similarly, in Burghart v. Corrections
Corp. of America, 350 F. App’x 278 (10th Cir. 2009), prisoner Burghart claimed that he suffered
“‘constant stress’ due to the denial of his constitutional rights and that he ‘has and could suffer’
migraines, ‘cardiovascular [problems],’ hypertension, fatigue and depression, a ‘suppressed
Case 1:21-cv-01030-RSK ECF No. 14, PageID.43 Filed 01/11/22 Page 6 of 7
immune system,’ memory loss, psoriasis, weight gain, sleep disorders, and a shortened life
expectancy.” Id. at 280. The Tenth Circuit Court of Appeals found the allegations conclusory and
Burghart’s attempt to link the injuries to the claimed constitutional right violations “not credible.”
Id. Likewise, in Sutton v. District Attorney’s Office of Gwinnet Superior Ct., Georgia, 334 F.
App’x 278 (11th Cir. 2009), prisoner Sutton claimed that his unconstitutional confinement
“‘endangered his physical health’ by ‘causing him stress, anxiety, depression, and further his life
[was] deteriorating . . . inside [the] prison for no reason at all.’” Id. at 279. The Eleventh Circuit
Court of Appeals found that “these types of general assertions, even construed liberally, [were]
‘insufficient to invoke the exception to § 1915(g) . . . .” Id. This Court also finds that such general
assertions of health consequences—which purportedly flow from stress which is purportedly
caused by a constitutional violation—to be too conclusory and speculative to establish imminent
danger of serious physical injury sufficient to except this case from the three-strike bar.
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 civil
action filing fees, which total $402.00. When Plaintiff pays his filing fees, 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 fees within the 28-day period, this case will be dismissed without prejudice, but
Plaintiff will continue to be responsible for payment of the $402.00 filing fees.
January 11, 2022
/s/ Ray Kent
United States Magistrate Judge
Case 1:21-cv-01030-RSK ECF No. 14, PageID.44 Filed 01/11/22 Page 7 of 7
SEND REMITTANCES TO THE FOLLOWING ADDRESS:
Clerk, U.S. District Court
399 Federal Bldg.
110 Michigan St., N.W.
Grand Rapids, MI 49503
All checks or other forms of payment shall be payable to “Clerk, U.S. District Court.”
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?