Grove v. Wallace et al

Filing 46

(DISREGARD) OPINION; signed by Judge Gordon J. Quist (Judge Gordon J. Quist, jmt) Modified text per chambers on 3/31/2017 (slk).

UNITED STATES OF AMERICA
UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

DARRYL A. ROBINSON,
Plaintiff,
v.

Case No. 1:17-cv-270
Honorable Gordon J. Quist

MICHIGAN DEPARTMENT OF
CORRECTIONS,
Defendant.
____________________________/

OPINION DENYING LEAVE
TO PROCEED IN FORMA PAUPERIS - THREE STRIKES
Plaintiff Darryl A. Robinson, a prisoner incarcerated at Richard A. Handlon
Correctional Facility (MTU), 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 $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). 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 the federal courts in Michigan, having filed
over sixty civil actions in this Court alone. The Court has dismissed more than three of Plaintiff’s
lawsuits on grounds that they were frivolous, malicious, or failed to state a claim. See Robinson v.
Lesatz et al., No. 2:05-cv-217 (W.D. Mich. Nov. 7, 2005); Robinson v. Luoma, No. 2:05-cv-218
(W.D. Mich. Nov. 7, 2005); Robinson v. Kutchie et al., No. 2:05-cv-211 (W.D. Mich. Oct. 28,
2005); Robinson v. Snow et al., No. 2:05-cv-212 (W.D. Mich. Oct. 28, 2005); Robinson v. Etelamaki
et al., No. 2:05-cv-200 (W.D. Mich. Oct. 4, 2005); Robinson v. Caruso et al., No. 2:05-cv-191
(W.D. Mich. Sept. 21, 2005); Robinson v. Meni et al., No. 2:05-cv-192 (W.D. Mich. Sept. 19, 2005);
and Robinson v. Etelamaki, No. 2:05-cv-194 (W.D. Mich. Sept. 19, 2005). In addition, Plaintiff has
been denied leave to proceed in forma pauperis under the three-strikes rule in more than thirty
previous actions filed in this Court.
Moreover, Plaintiff’s action does not fall under the exception for an inmate under
“imminent danger of serious physical injury.” 28 U.S.C. § 1915(g). The Sixth Circuit set forth the
following general requirements for a claim of imminent danger:
In order to allege sufficiently imminent danger, we have held that “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.” Rittner v. Kinder, 290 F. App’x
796, 797 (6th Cir. 2008) (internal quotation marks omitted). “Thus a prisoner’s
assertion that he or she faced danger in the past is insufficient to invoke the
exception.” Id. at 797–98; see also [Taylor v. First Med. Mgmt., 508 F. App’x 488,
492 (6th Cir. 2012)] (“Allegations of past dangers are insufficient to invoke the
exception.”); Percival v. Gerth, 443 F. App’x 944, 946 (6th Cir. 2011) (“Assertions
of past danger will not satisfy the ‘imminent danger’ exception.”); cf. [Pointer v.
Wilkinson, 502 F.3d 369, 371 n.1 (6th Cir. 2007)] (implying that past danger is
insufficient for the imminent-danger exception).
In addition to a temporal requirement, we have explained that the allegations
must be sufficient to allow a court to draw reasonable inferences that the danger
exists. To that end, “district courts may deny a prisoner leave to proceed pursuant
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to § 1915(g) when the prisoner’s claims of imminent danger are conclusory or
ridiculous, or are clearly baseless (i.e. are fantastic or delusional and rise to the level
of irrational or wholly incredible).” Rittner, 290 F. App’x at 798 (internal quotation
marks and citations omitted); see also Taylor, 508 F. App’x at 492 (“Allegations that
are conclusory, ridiculous, or clearly baseless are also insufficient for purposes of the
imminent-danger exception.”).
Vandiver v. Prison Health Services, Inc., 727 F.3d 580, 585 (6th Cir. 2013). A prisoner’s claim of
imminent danger is subject to the same notice pleading requirement as that which applies to prisoner
complaints. Id. Consequently, a prisoner must allege facts in the complaint from which the Court
could reasonably conclude that the prisoner was under an existing danger at the time he filed his
complaint, but the prisoner need not affirmatively prove those allegations. Id.
In the instant case, Plaintiff sues only the Michigan Department of Corrections
(MDOC), which is immune from suit. See Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S.
89, 98-101 (1984); Alabama v. Pugh, 438 U.S. 781, 782 (1978); Abick v. Michigan, 803 F.2d 874,
877 (6th Cir. 1986). In addition, Plaintiff’s allegations lack specificity about the nature of the harm
he faces. Plaintiff alleges that a lieutenant and officers came to his cell and told him that he was
going to segregation. He asserts that he is in imminent danger because he has a SPON (Special
Problem Offender Notice), see MICH. DEP’T OF CORR., Policy Directive 03.03.110, related to an
employee at the Earnest C. Brooks Correctional Facility (LRF). Plaintiff appears to suggest that his
transfer to MTU and placement in segregation put him in imminent danger from all MDOC officers,
because of the SPON, and he seeks transfer back to LRF and expungement of all misconducts since
he received the notice of intent to classify him to segregation. Nothing about Plaintiff’s allegations
suggests that he is in imminent danger of serious physical injury. His allegations of imminent
danger are wholly speculative, and he utterly fails to indicate what serious physical injury he is at
risk of incurring.

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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 $400.00. 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 $400.00 filing fee.

Dated: March 31, 2017

/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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