McGore #142739 v. Hofbauer et al
Filing
12
OPINION; signed by Judge Gordon J. Quist (Judge Gordon J. Quist, jmt)
UNITED STATES OF AMERICA
UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MICHIGAN
NORTHERN DIVISION
DARRYL McGORE,
Plaintiff,
Case No. 2:12-cv-325
v.
Honorable Gordon J. Quist
GERALD HOFBAUER et al.,
Defendants.
____________________________________/
OPINION DENYING LEAVE
TO PROCEED IN FORMA PAUPERIS - THREE STRIKES
Plaintiff Darryl McGore, a prisoner incarcerated at Baraga Maximum Correctional
Facility, 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
Wilson, 148 F.3d at 604-06); Rodriguez v. Cook, 169 F.3d 1176, 1178-82 (9th Cir. 1999); Rivera
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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 more than twentyfive 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.
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. In his complaint, Plaintiff alleges that in September 2011, he was denied yard for
two and one-half weeks. He also complains that certain drinks served by the prison are not labeled,
and, therefore, he was unable to review their ingredients. First, Plaintiff’s allegations regarding the
denial of his yard-time concern danger that he faced in the past; such allegations are insufficient to
invoke the imminent-danger exception. See 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).
Furthermore, Plaintiff’s claim of imminent danger due to the prison’s failure to label the ingredients
of certain drinks is conclusory and completely baseless. Plaintiff has not alleged that he is in
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imminent danger of any type of serious physical injury from the drinks. See Rittner, 290 F. App’x
at 797-98 (finding other circuits have denied a prisoner leave to proceed in forma pauperis when the
prisoner’s claims of imminent danger are “conclusory or ridiculous,” Ciarpaglini v. Saini, 352 F.3d
328, 331 (7th Cir. 2003), or are “‘clearly baseless’ (i.e. are fantastic or delusional and rise to the
level of ‘irrational or wholly incredible’)”) (citing Gibbs v. Cross, 160 F.3d 962, 967 (3d Cir. 1998))
(quoting Denton v. Hernandez, 504 U.S. 25, 33 (1992)).
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: September 28, 2012
/s/ Gordon J. Quist
GORDON J. QUIST
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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