Grayson #253538 v. Unknown Part(y)(ies)
OPINION; signed by District Judge Paul L. Maloney (Judge Paul L. Maloney, cmc)
Case 2:20-cv-00204-PLM-MV ECF No. 4, PageID.10 Filed 11/19/20 Page 1 of 4
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
Case No. 2:20-cv-204
Honorable Paul L. Maloney
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 has failed to pay the filing fee and, presumably, 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).
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
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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
three of Plaintiff’s lawsuits, the Court entered dismissals on the grounds that the cases were
frivolous, malicious, and/or failed to state a claim. See Grayson v. Frontera, No. 2:07-cv-42 (W.D.
Mich. June 11, 2007); Grayson v. Caruso et al., No. 2:08-cv-177 (W.D. Mich. Nov. 3, 2008);
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Grayson v. Frontera, No. 2:08-cv-191 (W.D. Mich. Oct. 20, 2008). Moreover, the Court has
previously denied Plaintiff leave to proceed in forma pauperis because of those dismissals. See
Grayson v. Caruso et al., No. 2:10-cv-4 (W.D. Mich. Apr. 9, 2010).
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.
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Plaintiff alleges that Corrections Officer Lorendo delivered Plaintiff’s breakfast
tray on September 13, 2020. When plaintiff began eating, he cut his tongue and his stomach “had
[a] sudden bad feeling.” (Compl., ECF No. 1, PageID.1.) Lorendo refused to call health services.
Second-shift Corrections Officer Laroux contacted health services. Nurse Dawn Coon visited
Plaintiff’s cell and examined the cut. She informed Plaintiff that he would be scheduled to see a
nurse, but that his injury was non-emergent. Plaintiff complains that he has not been seen by a
doctor. Lorendo has since permitted Plaintiff to choose the food tray he wants. Nonetheless,
Plaintiff claims that another corrections officer, Unknown Schwab, makes Plaintiff take a specific
tray. Plaintiff does not report that the trays he receives from Schwab have caused him any injury.
Although Plaintiff’s allegations show a past injury, they do not support a claim that Plaintiff faced
a real and proximate threat of serious physical injury when he filed his complaint a month later.
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.
November 19, 2020
/s/ Paul L. Maloney
Paul L. Maloney
Chief United States District Judge
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Clerk, U.S. District Court
330 Federal Bldg.
202 W. Washington St.
PO Box 698
Marquette, MI 49855
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