Gresham #272603 v. Dahl et al
Filing
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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-21
v.
Honorable R. Allan Edgar
NICOLE DAHL,
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 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 Gresham has been an extremely active litigant in the federal courts in
Michigan. The court has dismissed more than three of Plaintiff Gresham’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-cv1038 (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 Gresham leave to proceed in forma pauperis, see
Gresham v. Canlis et al., No. 2:11-cv-179 (W.D. Mich. June 9, 2011); Dennis v. Canlis, No. 2:11cv-186 (W.D. Mich. June 6, 2011).
Moreover, Plaintiff’s allegations do not fall within the exception to the three-strikes
rule because he does not allege any facts establishing that he is under imminent danger of serious
physical injury. Plaintiff’s claims are somewhat difficult to decipher, as his allegations about past
assaults and threats are interwoven with his present claims, in an apparent attempt to demonstrate
the existence of imminent danger. It appears, however, that Plaintiff is alleging that on August 3,
2011, he arrived on F-Block. Plaintiff states that for the next three weeks he was not fed, had razors
and poisonous substances placed in his food, and was deprived of food trays. Plaintiff asserts that
on September 14, 2011, he weighed 140 pounds because of the deprivation of food trays. However,
according to the offender tracking information system on the MDOC database, as of September 23,
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2011, Plaintiff was 6 feet tall and weighed 180 pounds.
See http://mdocweb.state.mi.us/
otis2/otis2profile.aspx?mdocNumber=272603. Plaintiff alleges that on September 16, 2011, he
submitted a medical kite to Defendant LaForest complaining of pain and bleeding as a result of
ingesting a razor blade. Plaintiff also claims that he has been sexually assaulted and that he has been
denied snack bags. Finally, Plaintiff claims that Defendants interfered with his ability to proceed
in forma pauperis in prior lawsuits when they issued fraudulent account statements.
Congress did not define “imminent danger” in the PLRA, but it is significant that
Congress chose to use the word “imminent,” a word that conveys the idea of immediacy.
“Imminent” is “Near at hand . . . impending; on the point of happening; threatening, menacing,
perilous. Something which is threatening to happen at once, something close at hand, something to
happen upon the instant . . . and on the point of happening.” BLACK’S LAW DICTIONARY , 514-15
(6th ed. 1991). “Imminent” is also defined as “ready to take place, near at hand, impending, hanging
threateningly over one’s head, menacingly near.” WEBSTER’S THIRD NEW INTERNATIONAL
DICTIONARY , 1130 (1976). “Imminent danger” is “such an appearance of threatened and impending
injury as would put a reasonable and prudent man to his instant defense.” BLACK’S LAW
DICTIONARY , 515 (6th ed. 1991).
In a recent decision, the Sixth Circuit recognized the standard 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
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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)).
Rittner v. Kinder, 290 F. App’x 796, 797-98 (6th Cir. 2008). Thus a prisoner’s assertion that he
faced danger in the past is insufficient to invoke the exception. Id.
Plaintiff’s allegations concern past incidents of physical harm and threats, together
with non-physical violations of his civil rights. There is simply no factual basis exists for concluding
that, simply because Plaintiff was assaulted in the past, the risk of further assault is imminent. 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:
2/6/2012
/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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