McGore #142739 v. Unknown Part(y)(ies) et al
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
Case No. 2:12-cv-422
Honorable Gordon J. Quist
UNKNOWN PART(Y)(IES) et al.,
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).
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.
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.
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 on October 15, 2012, he did not receive any
Novocain during a dental procedure, and, thus, he experienced severe pain and suffering. 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).
The Sixth Circuit has recognized the standard previously adopted by other circuit
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’s allegations
regarding the denial of Novocain concerns danger that he faced in the past, and, therefore, is
insufficient to invoke the imminent-danger exception. See Rittner, 290 F. App’x at 797-98.
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: November 30, 2012
/s/ Gordon J. Quist
GORDON J. QUIST
UNITED STATES DISTRICT JUDGE
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