Gresham #272603 v. Napel et al

Filing 3

OPINION ; signed by Judge Robert Holmes Bell (Judge Robert Holmes Bell, kcb)

UNITED STATES OF AMERICA
UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MICHIGAN
NORTHERN DIVISION

MICHAEL GRESHAM,
Plaintiff,

Case No. 2:11-cv-520

v.

Honorable Robert Holmes Bell

R. NAPEL et al.,
Defendants.
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OPINION DENYING LEAVE
TO PROCEED IN FORMA PAUPERIS - THREE STRIKES
Plaintiff Michael Gresham, a prisoner incarcerated at Marquette Branch Prison, 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 $350.00 civil action filing fee within twenty-eight (28) days
of this opinion and accompanying order, and 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 $350.00 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 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
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

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596, 604-06 (6th Cir. 1998); accord 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 extremely active litigant in the federal courts in Michigan.
The court has dismissed more than three of Plaintiff’s actions for failure to state a claim. See
Gresham v. Caruso et al., No. 2:10-cv-195 (W.D. Mich. Apr. 11, 2011); Gresham v. Paine et al.,
No. 1:10-cv-1146 (W.D. Mich. Mar. 8, 2011); Gresham v. Caruso et al., No. 1:10-cv-1038 (W.D.
Mich. Jan. 26, 2011); Gresham v. Verville et al., No. 2:10-cv-198 (W.D. Mich. Jan. 19, 2011);
Gresham v. Mich. Dep’t of Corr. et al., No. 2:07-cv-241 (W.D. Mich. June 9, 2008). In addition,
the Court previously has denied Plaintiff leave to proceed in forma pauperis because he has three
strikes. See Gresham v. LaChance et al., 2:11-cv-231 (W.D. Mich. Aug. 12, 2011); Gresham v.
Canlis et al., No. 2:11-cv-179 (W.D. Mich. June 9, 2011); Dennis v. Canlis, No. 2:11-cv-186 (W.D.
Mich. June 6, 2011).
Plaintiff seeks to invoke the statutory exception for a prisoner who is under imminent
danger of serious physical injury. The Sixth Circuit has recognized the standard previously adopted
by other circuit courts:
While the Sixth Circuit has not defined the term “imminent danger” for purposes of
this section, other Circuits have held that to meet the requirement, 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. See, e.g., Ciarpaglini v. Saini, 352 F.3d
328, 330 (7th Cir. 2003); Abdul-Akbar v. McKelvie, 239 F.3d 307, 313 (3d Cir. 2001)
(en banc). Thus a prisoner’s assertion that he or she faced danger in the past is
insufficient to invoke the exception. Id. Other Circuits also have held that 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,” Ciarpaglini,
352 F.3d at 331, or are “‘clearly baseless’ (i.e. are fantastic or delusional and rise to
the level of ‘irrational or wholly incredible).’” Gibbs v. Cross, 160 F.3d 962, 967 (3d
Cir.1998) (quoting Denton v. Hernandez, 504 U.S. 25, 33 (1992)).
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Rittner v. Kinder, 290 F. App’x 796, 797-98 (6th Cir. 2008); see also Vandiver v. Vasbinder, 416
F. App’x 560, 561-62 (6th Cir. 2011) (imminent danger must be contemporaneous with the
complaint’s filing); Pointer v. Wilkinson, 502 F.3d 369, 371 n.1 (6th Cir. 2007) (holding that
assertions of past danger do not satisfy the imminent-danger exception).
Plaintiff’s claims are somewhat difficult to decipher but they appear to stem from his
2009 allegations of rape. Plaintiff alleges that, on July 10, 2009, he was raped by employees of the
Michigan Department of Corrections (MDOC). Plaintiff filed an action regarding the rape in
Gresham v. Granholm et al., Case No. 2:09-cv-231 (W.D. Mich.). Because Plaintiff filed Case No.
2:09-cv-231, and other actions in the district court, he argues that Defendants are involved in a
conspiracy to retaliate against him. Plaintiff states (verbatim):
Imminent danger shown due to the force/excessive force used to medicate Plaintiff
against his will so he would be unable to litigate or file actions competently in court.
This action involves a conspiracy that shocks the conscience of mankind. Plaintiff
Gresham is falsily imprisoned Case No. 10-2083 lower ct No. 2:09-cv-229 is due for
remand. The smaller but relevant issue here to link the conspiracy to retaliate is
over years from 2006 through 2011. MDOC agents have retaliatorily transferred Mr.
Gresham to numerous facilities Case No. 2:10-cv-197 is an exhibit as Case No. 2:10cv-239 in addition due to Mr. Greshams crime of incarceration & prison officials
disbelief he was innocent he was raped 7/10/09 Case No. 2:09-cv-231 is an exhibit
an attempt to cover up said rape ensued but Mr. Gresham made it to a hospital where
a metal object was left in his body over 2 ½ weeks with the intent to kill him by
deliberate indifference and gross negligence . . . .
(Compl., docket #1, Page ID#4) (emphasis added.) Plaintiff also alleges that several MDOC staff
members have attempted to kill him and sexually assault him. He further claims that razors have
been placed in his food loaf, and he has been labeled as mentally ill and involuntarily treated with
psychotropic drugs. Plaintiff’s allegations are wholly unsupported. Moreover, Plaintiff provides that
these actions occurred “from 2006 through 2011.” (Id.) Assertions of past danger do not satisfy the
imminent-danger exception. Rittner, 290 F. App’x at 797-98; Pointer, 502 F.3d at 371 n.1.
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Accordingly, Plaintiff’s allegations do not fall within the exception to the three-strikes rule because
he does not allege facts establishing that he is in imminent danger of serious physical injury.
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 $350.00. 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 $350.00 filing fee.

Dated: February 6, 2012

/s/ Robert Holmes Bell
ROBERT HOLMES BELL
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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