Gresham #272603 v. Snyder et al

Filing 4

OPINION Denying Leave to Proceed In Forma Pauperis - Three Strikes ; signed by Judge R. Allan Edgar (Judge R. Allan Edgar, cam)

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

MICHAEL GRESHAM,
Plaintiff,

Case No. 2:12-cv-5

v.

Honorable R. Allan Edgar

RICK SNYDER et al.,
Defendants.
____________________________________/
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
596, 604-06 (6th Cir. 1998); accord Pointer v. Wilkinson, 502 F.3d 369, 377 (6th Cir. 2007) (citing
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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 this Court, having filed thirty civil actions.
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).
Throughout his complaint, which is difficult to follow, Plaintiff makes a variety of
sweeping assertions that he is in imminent danger, but makes few specific factual allegations in
support of his claim. For example, Plaintiff opens his complaint by stating (verbatim):
This civil action involves Plaintiff Greshams life being in imminent danger as
Defendant Kathleen A. Mutschler mental health team have in essence made a
retaliatory conspiracy with (MBP) (ICF) (AMF) MDOC agents in this mens rea
modus operandi. Because Mr. Gresham was raped Case no. 2:09-cv-231 they seek
to claim this reknown advocate and litigator is delusional and all his claims against
MDOC current pending actions are based on persecutory delusions and his efforts to
aid in US prison reform is gradoise.
(Compl., docket #1, Page ID#3.) While Plaintiff goes on to assert that he is under threat of being
involuntarily injected with psychotropic medications, which “would likely kill him by causing his
lungs to become paralyzed” (Page ID#3), his assertion is entirely speculative and unsubstantiated.
Plaintiff further claims that he “continues to receive threats from M.D.O.C. staff to kill him” (Page
ID#15), but provides no specific factual allegations whatsoever regarding when these threats
occurred, the source of the threats, etc. Plaintiff also alleges that he is subject to “ongoing sexual
assaults,” but makes specific allegations only with regard to the alleged sexual assault that is the
subject of the 2009 lawsuit referenced above. As previously discussed, 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. 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.
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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:

1/27/2012

/s/ R. Allan Edgar
R. Allan Edgar
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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