Littlejohn #141899 v. Washington et al

Filing 7

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

JUIVONNE LITTLEJOHN, #141899,
Plaintiff,

Case No. 2:16-cv-284

v.

Honorable Gordon J. Quist

HEIDI WASHINGTON,
Defendants.
____________________________________/
OPINION DENYING LEAVE
TO PROCEED IN FORMA PAUPERIS - THREE STRIKES
Plaintiff Juvionne Littlejohn, a prisoner incarcerated at Baraga Maximum
Correctional Facility, filed a complaint pursuant to 42 U.S.C. § 1983. Plaintiff was initially granted
leave to proceed in forma pauperis. Because Plaintiff has filed at least three lawsuits that were
dismissed as frivolous or for failure to state a claim, he is barred from proceeding in forma pauperis
under 28 U.S.C. § 1915(g). The Court therefore will vacate the earlier order allowing Plaintiff to
proceed in forma pauperis and 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
approximately 40 cases in this district and more than a dozen other cases in the Eastern District of
Michigan. In more than three of Plaintiff’s lawsuits, the Court entered dismissals on the grounds
of failure to state a claim. See Littlejohn v. Green et al., No. 2:07-cv-213 (W.D. Mich. Jan. 16,
2008); Littlejohn v. McGinnis, No. 2:98-cv-243 (W.D. Mich. Apr. 5, 1999); Littlejohn v. Alexander,
No. 2:91-cv-244 (W.D. Mich. Nov. 27, 1991); Littlejohn v. Houseworth, No. 2:91-cv-255 (W.D.
Mich. Mar. 25, 1992). Although two 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.
Plaintiff also has been denied leave to proceed in forma pauperis on the basis of the three-strikes
rule on at least four prior occasions. See Littlejohn v. Richardson et al., No. 1:13-cv-763 (W.D.
Mich. Jul. 30, 2013); Littlejohn v. Caruso et al., No. 2:10-cv-316 (W.D. Mich. May 1, 2011);
Littlejohn v. Dube, Not. 2:10-cv-42 (W.D. Mich. Sept. 3, 2010); Littlejohn v. Tribley et al., No.
2:10-cv-26 (W.D. Mich. Aug. 26, 2010).
Moreover, Plaintiff’s allegations do not fall within the exception to the three-strikes
rule because he does not allege facts establishing that he is under imminent danger of serious
physical injury. 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
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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 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
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 complaint, Plaintiff alleges that, at some time in the past, he was
attacked by unknown gang members. He asserts that Defendants have continued to place him at
Marquette Branch Prison (MBP) and Baraga Maximum Correctional Facility (AMF), despite the
fact that many gang members are housed at those facilities. Plaintiff presently is incarcerated in
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administrative segregation at AMF. He asserts that he is in imminent danger of being assaulted by
a gang member.
Plaintiff’s allegation of imminent danger rests largely on the fact that he was attacked
in the past by one or more members of a gang. A prisoner’s assertion that he faced danger in the
past is insufficient to invoke the exception. Vandiver, 727 F.3d at 585; Rittner, 290 F. App’x at
797-98. In addition, Plaintiff makes no allegations about recent assaults or threats. In fact, as early
as 2010, Plaintiff sought and was twice denied pauper status in this Court under the three-strikes rule
based on essentially the same allegations. See Littlejohn v. Caruso et al., No. 2:10-cv-316 (W.D.
Mich. May 1, 2011) (complaining that, because he had a conflict with a gang at MBP, he was in
imminent danger at AMF due to the presence of gang members in the prison); Littlejohn v. Tribley
et al., No. 2:10-cv-26 (W.D. Mich. Aug. 26, 2010) (complaining that his placement at MBP placed
him in imminent danger because he was previously involved in a conflict with the Vice Lords at
MBP).
Further, Plaintiff is housed at AMF in administrative segregation. Administrative
segregation is the most restrictive level of security classification. MICH. DEP’T OF CORR., POLICY
DIRECTIVE 04.05.120, ¶L (effective Sept. 27, 2010). Prisoners in administrative segregation are not
permitted recreation or religious and educational programming in a group setting. Id., ¶W. Because
Plaintiff is not allowed recreation in a group setting, the other prisoners who have threatened him
would not have access to him during yard time. The other inmates would also not have access to
Plaintiff in the hallways or showers as administrative segregation is the most restrictive level of
security classification. Plaintiff therefore fails to allege that the prisoners’ threats constitute
“imminent danger” under 28 U.S.C. § 1915(g). Plaintiff has thus failed to show that he falls within
the exception to the three-strikes rule.

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In light of the foregoing, the Court’s January 31, 2016, order granting leave to
proceed in forma pauperis will be vacated as improvidently granted. Plaintiff shall have twentyeight (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: February 28, 2017

/s/ Gordon J. Quist
GORDON J. QUIST
UNITED STATES DISTRICT JUDGE

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399 Federal Building
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Grand Rapids, MI 49503
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