McGore #142739 v. Leech et al
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
Case No. 2:12-cv-296
Honorable Robert Holmes Bell
UNKNOWN LEECH et al.,
OPINION DENYING LEAVE
TO PROCEED IN FORMA PAUPERIS - THREE STRIKES
Plaintiff Darryl McGore, 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.
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
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
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.
Plaintiff has been an active litigant in this Court, having filed more than twenty-five
civil actions. In more than three of Plaintiff’s lawsuits, the Court entered dismissals on the grounds
that the cases were frivolous, malicious or failed to state a claim. See McGore v. Mich. Sup. Ct.
Judges, No. 1:94-cv-517 (W.D. Mich. Jan. 25, 1995); McGore v. Nardi et al., No. 2:93-cv-137
(W.D. Mich. Aug. 2, 1993); McGore v. Stine et al., No. 2:93-cv-112 (W.D. Mich. July 26, 1993);
McGore v. Stine et al., No. 2:93-cv-77 (W.D. Mich. Apr. 30, 1993). Although all of the dismissals
were entered before enactment of the PLRA on April 26, 1996, the dismissals nevertheless count as
strikes. See Wilson, 148 F.3d at 604. In addition, Plaintiff previously has been denied leave to
proceed in forma pauperis on numerous occasions for having three strikes. See, e.g., McGore v.
Brioke, No. 1:11-cv-395 (W.D. Mich. May 6, 2011); McGore v. Gooch, No. 1:11-cv-340 (W.D.
Mich. May 3, 2011); McGore v. Briske, No. 1:10-cv-919 (W.D. Mich. Sept. 27, 2010); McGore v.
Briske, No. 1:10-cv-920 (W.D. Mich. Sept. 27, 2010); McGore v. Servinski et al., No. 1:10-cv-682
(W.D. Mich. Aug. 6, 2010).
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)).
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 McGore complains that he was denied yard time, sunlight and exercise while
housed in detention at the Marquette Branch Prison (MBP) on August 5, 2011 and September 3,
2011. 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. In addition, Plaintiff’s
allegations about Defendants’ actions at MBP fail to show that he was in imminent danger at the
time he filed the instant action, when he was housed at the Baraga Maximum Correctional Facility.
Plaintiff is no longer at risk of injury from the MBP Defendants because he no longer resides there.
See Day v. Maynard, 200 F.3d 665, 667 (10th Cir. 1999) (holding that a plaintiff cannot show
imminent danger based on events that occurred at a facility other than his current place of
incarceration). Because Plaintiff fails to allege facts showing that he is in real and proximate danger
of serious physical injury, he cannot successfully invoke the exception.
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 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: August 14, 2012
/s/ Robert Holmes Bell
ROBERT HOLMES BELL
UNITED STATES DISTRICT JUDGE
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