McGore #142739 v. Finegan et al
Filing
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OPINION ; signed by Chief Judge Robert J. Jonker (Chief Judge Robert J. Jonker, ymc)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
NORTHERN DIVISION
______
DARRYL MCGORE,
Plaintiff,
v.
Case No. 2:18-cv-57
Honorable Robert J. Jonker
DAVID A. FINEGAN et al.,
Defendants.
____________________________/
OPINION DENYING LEAVE
TO PROCEED IN FORMA PAUPERIS - THREE STRIKES
This is a civil rights action brought by a state prisoner under 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. This
fee must be paid within twenty-eight (28) days of this opinion and accompanying order. If Plaintiff
fails to pay the fee, the Court will order that this case be dismissed without prejudice. Even if the
case is dismissed, Plaintiff must pay 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 created 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).
Plaintiff has been an active litigant in the federal courts in Michigan. In more than
three of Plaintiff’s lawsuits, the Court entered dismissals because the cases were frivolous,
malicious or failed to state a claim. See, e.g., 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);
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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 many 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 “imminent danger”
exception to the three-strikes rule. 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 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
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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.
Plaintiff alleges that on November 28, 2017, Defendant Finegan told Plaintiff that
if he wanted his “caffeine medicated pain pills,” which are used to treat migraines, he could have
two pills every day even when he did not have a migraine. Defendant Finegan told Plaintiff that
if he did not take the pills, he would be removed from the “special Excedrin Migraine pain pill”
detail. Plaintiff claims that he has migraines every three to four days. Plaintiff also alleges that
he has been denied a snack detail, which he requested because the regular meals include rotten
food and unripe fruit. The Court concludes that Plaintiff’s allegations are insufficient to show
imminent danger of serious physical injury.
Therefore, § 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 does not
pay the filing fee within the 28-day period, this case will be dismissed without prejudice, but
Plaintiff will continue to be responsible for payment of the $400.00 filing fee.
Dated:
July 10, 2018
/s/ Robert J. Jonker
ROBERT J. JONKER
CHIEF 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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