Cummings #423843 v. Bureau of Health Care Services et al

Filing 33

OPINION ; 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

KEITH TYRONE CUMMINGS,
Plaintiff,
v.

Case No. 2:13-cv-224
Honorable R. Allan Edgar

BUREAU OF HEALTH CARE, et al.,
Defendants.
____________________________________/
OPINION GRANTING MOTION TO
REVOKE IN FORMA PAUPERIS STATUS - THREE STRIKES
Plaintiff Keith Tyrone Cummings, a prisoner incarcerated at Baraga Maximum
Correctional Facility (AMF), filed a complaint pursuant to 42 U.S.C. § 1983. Plaintiff was initially
granted leave to proceed in forma pauperis. However, Defendants have now filed a motion to
revoke pauper status, asserting that 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). It appears that Defendants are correct. The Court will order Plaintiff
to pay the $400.00 civil action filing fee applicable to those not permitted to proceed in forma
pauperis within twenty-eight (28) days of this opinion and accompanying order. 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 $400.00 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).

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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.
1997).
Plaintiff has been an active litigant in the federal courts in Michigan. In at least three
of Plaintiff’s lawsuits, the Court entered dismissals on the grounds that they were frivolous,
malicious, and or failed to state a claim. See; Cummings v. Ventocilla, No. 1:11-cv-365 (W.D. Mich.
June 30, 2011); Cummings v. Mason, No. 1:11-cv-649 (W.D. Mich. July 13, 2011); Cummings v.
Janczewski, No. 2:11-cv-10570 (E.D. Mich. Nov. 23, 2011).
The court notes that the dismissal in Cummings v. Janczewski, No. 2:11-cv-10570
was “without prejudice,” and that the court for the Eastern District of Michigan did not specify
whether Plaitiff’s allegations were frivolous or failed to state a claim. However, the court
specifically stated that the complaint was being dismissed pursuant to 28 U.S.C. § 1915(e)(2), which
provides that notwithstanding any filing fee, or any portion thereof, that may have been paid, the
court shall dismiss the case at any time if the court determines that the allegation of poverty is
untrue; or the action or appeal is frivolous or malicious; fails to state a claim on which relief may be

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granted; or seeks monetary relief against a defendant who is immune from such relief. The court
then stated:
Even taking the complaint in the light most favorable to Cummings,
and allowing for his status as a pro se litigant, his complaint cannot
overcome § 1915(e)(2)’s screening requirement. Cummings has
neither presented a federal question for the Court, nor pled an
alternative basis for jurisdiction such as diversity of citizenship,
which would give the Court the power to hear the case. It is also
exceedingly unlikely that Cummings’ libel claim has any substantive
merit.
See Cummings v. Janczewski, No. 2:11-cv-10570, Defendants’ Exhibit A, p. 5 of 6, docket #27-2.
Based on the above, it is clear that the reason the court dismissed Plaintiff’s complaint in Cummings
v. Janczewski, No. 2:11-cv-10570 was that it was frivolous and/or failed to state a claim.
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 claims that he is being denied medical treatment for his
Hepatitis C, as well as his knee pain. However, Plaintiff fails to specifically allege what injry, if any,
he has suffered as a result of this denial. Where a prisoner has disputed the adequacy of medical
treatment for a period of years but fails to allege any serious injury in other than a conclusory
fashion, he has failed sufficiently to allege imminent danger. See Sweatt v. Tennessee Dep’t of
Corrections, No. 00-5874, 2001 WL 128357, at *1 (6th Cir. Feb. 6, 2001).
In light of the foregoing, § 1915(g) prohibits Plaintiff from proceeding in forma
pauperis in this action. Therefore, the court will grant Defendants’ motions to revoke pauper status
(docket #26). Plaintiff has twenty-eight (28) days from the date of entry of this order to pay the
entire civil action filing fee, which is $400.00. When Plaintiff pays his filing fee, the Court will

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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 $400.00 filing fee.

Dated:

7/11/2014

/s/ R. Allan Edgar
R. Allan Edgar
United States District Judge

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