Gresham #272603 v. Falk et al
OPINION; Order to issue; signed by Judge Janet T. Neff (Judge Janet T. Neff, clb)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
Case No. 2:19-cv-161
Honorable Janet T. Neff
DEREK FALK et al.,
OPINION VACATING AUGUST 26, 2019, ORDER AND 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 sought leave to proceed in forma pauperis. In an order (ECF No. 3) issued on August 26,
2019, the Court granted the motion. Upon further review, it appears that leave was improvidently
granted. Accordingly, the Court will vacate its August 26, 2019, order. 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).
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 at least
nine of his cases, Plaintiff’s claims were dismissed because they were frivolous, malicious or failed
to state a claim. See Gresham v. Washington et al., No. 1:15-cv-1067 (W.D. Mich. Jan. 6, 2016);
Gresham v. Caruso et al., No. 2:10-cv-196 (W.D. Mich. Oct. 27, 2011); Gresham et al. v. Canlis
et al., No. 2:11-cv-179 (W.D. Mich. July 29, 2011); Gresham v. Payne et al., No. 1:10-cv-1146
(W.D. Mich. Mar. 8, 2011); Gresham v. Caruso et al., No. 1:10-cv-1038 (W.D. Mich. Jan. 26,
2011); Gresham v. Wolak et al., No. 2:10-cv- 239 (W.D. Mich. July 25, 2011); Gresham v. Verville
et al., No. 2:10-cv-198 (W.D. Mich. Jan. 19, 2011); Gresham v. Caruso et al., No. 2:10-cv-195
(W.D. Mich. Apr. 11, 2011); Gresham v. Mich. Dep’t of Corr. et al., No. 2:07-cv-241 (W.D. Mich.
June 9, 2008). Plaintiff also has been denied leave to proceed in forma pauperis in numerous
cases. See Gresham v. Meden et al., No. 2:18-cv-9 (W.D. Mich. July 19, 2018); Gresham v. Smith
et al., No. 1:16-cv-1402 (W.D. Mich. Jan. 4, 2017); Gresham v. Miniard et al., No. 1:16-cv-427
(W.D. Mich. June 7, 2016); Gresham v. Christiansen et al., No. 1:16-cv-428 (W.D. Mich. May
13, 2016); Gresham v. Austin et al., 2:16-cv-71 (W.D. Mich. May 2, 2016); Gresham et al. v.
Yunker et al., No. 2:13-cv-221 (W.D. Mich. Aug. 29, 2013); Gresham v. Nader et al., 2:13-cv-212
(W.D. Mich. July 22, 2013); Gresham et al. v. Napel et al., No. 2:13-cv-176 (W.D. Mich. June 12,
2013); Gresham v. Prelesnik et al., No. 1:12-cv-276 (W.D. Mich. July 2, 2012); Gresham v. Czop
et al., No. 1:12-cv-494 (W.D. Mich. June 18, 2012); Gresham v. Heyns et al., No. 1:12-cv-277
(W.D. Mich. Apr. 11, 2012); Gresham v. Snyder et al., No. 1:12-cv-143 (W.D. Mich. Mar. 6,
2012); Gresham v. Mutschler et al., No. 2:12-cv-12 (W.D. Mich. Apr. 20, 2012); Gresham v.
Snyder et al., No. 2:12-cv-22 (W.D. Mich. Mar. 30, 2012); Gresham v. Mutschler et al., No. 2:12cv-9 (W.D. Mich. Feb. 10, 2012); Gresham v. Snyder et al., No. 2:12-cv-5 (W.D. Mich. Jan. 27,
2012); Gresham v. Violetta et al., No. 2:12-cv-24 (W.D. Mich. Feb. 6, 2012); Gresham v. Dahl et
al., No. 2:12-cv-21 (W.D. Mich. Feb. 6, 2012); Gresham v. Napel et al., No. 2:11-cv-520 (W.D.
Mich. Feb. 6, 2012); Gresham v. LaChance et al., No. 2:11-cv-231 (W.D. Mich. June 24, 2011);
Dennis et al v. Canlis et al., No. 2:11-cv-186 (W.D. Mich. June 6, 2011).
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
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 he is in imminent danger because the named Defendants, all
of whom are medical providers at the Marquette Branch Prison (MBP), failed in the past to treat
his two serious hernias. However, both at the time Plaintiff filed his complaint and now, Plaintiff
was housed at the Carson City Correctional Facility (DRF). As a consequence, none of the
Defendants in this action has any control over Plaintiff’s ongoing medical treatment. Where, as
here, Plaintiff’s allegations pertain to events that occurred at a facility other than his current place
of incarceration, a plaintiff no longer is in imminent danger from the defendants he sues. See Day
v. Maynard, 200 F.3d 665, 667 (10th Cir. 1999).
Therefore, § 1915(g) prohibits Plaintiff from proceeding in forma pauperis in this
action. The Court therefore will vacate its August 26, 2019, order granting leave to proceed in
forma pauperis as improvidently granted. 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.
October 10, 2019
/s/ Janet T. Neff
Janet T. Neff
United States District Judge
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Grand Rapids, MI 49503
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