Preston #235170 v. Hoffman et al

Filing 10

OPINION; signed by Chief Judge Hala Y. Jarbou (eod)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
NORTHERN DIVISION
______
HARVEY PRESTON,
Plaintiff,
Case No. 2:24-cv-179
v.
Hon. Hala Y. Jarbou
NATE HOFFMAN et al.,
Defendants.

____________________________/
OPINION
This is a civil rights action brought by a state prisoner under 42 U.S.C. § 1983. This action
was initially filed in the District Court for the Eastern District of Michigan but was transferred to
this Court on October 23, 2024. (ECF No. 6.) Plaintiff has filed a motion for leave to proceed in
forma pauperis. (ECF No. 2.) However, Plaintiff is barred from proceeding in forma pauperis
under 28 U.S.C. § 1915(g). Where a plaintiff is ineligible for in forma pauperis status under 28
U.S.C. § 1915, “he must make full payment of the filing fee before his action may proceed.” In re
Alea, 286 F.3d 378, 380 (6th Cir. 2002).
Plaintiff has filed at least three lawsuits that were dismissed as frivolous, malicious, or for
failure to state a claim, and Plaintiff has not demonstrated that he is in imminent danger of serious
physical injury to allow him to proceed in forma pauperis in this action. Further, Plaintiff has not
paid the $405.00 civil action filing fees applicable to those not permitted to proceed in forma

pauperis.1 Accordingly, for the reasons set forth below, this action will be dismissed without
prejudice pursuant to 28 U.S.C. § 1915(g).
Discussion
The PLRA 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.

1

The filing fee for a civil action is $350.00. 28 U.S.C. § 1914(a). The Clerk is also directed to
collect a miscellaneous administrative fee of $55.00. 28 U.S.C. § 1914(b); https://www.uscourts.
gov/services-forms/fees/district-court-miscellaneous-fee-schedule. However, the miscellaneous
administrative fee “does not apply to applications for a writ of habeas corpus or to persons granted
in forma pauperis status under 28 U.S.C. § 1915.” https://www.uscourts.gov/services-forms/fees/
district-court-miscellaneous-fee-schedule.
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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).
In more than 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 Preston v. White, No. 2:03cv-249 (W.D. Mich. Jan. 7, 2004); Preston v. Duney, No. 2:03-cv-253 (W.D. Mich. Jan. 6, 2004);
Preston v. Burch, No. 1:03-cv-581 (W.D. Mich. Dec. 5, 2003); Preston v. MDOC, No. 1:03-cv812 (W.D. Mich. Dec. 2, 2003). In addition, the Court previously has denied Plaintiff leave to
proceed in forma pauperis under the three-strikes rule. See Preston v. Davids, No. 1:24-cv-416
(W.D. Mich. May 7, 2024); Preston v. Rewerts et al., No. 1:24-cv-304 (W.D. Mich. Apr. 25, 2024);
Preston v. Russell, No. 1:21-cv-312 (W.D. Mich. Apr. 29, 2021); Preston v. Davids, No. 1:18-cv803 (W.D. Mich. Aug. 8, 2018); Preston v. Smith et al., No. 1:18-cv-84 (W.D. Mich. Feb. 2, 2018);
Preston v. U.P. Health Sys. et al., No. 2:16-cv-201 (W.D. Mich. Sept. 30, 2016).
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
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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 states that he was transferred to the Baraga Correctional Facility (AMF) on
September 9, 2024, and that during intake Defendant Marsha Nurkala asked him if he wanted to
“get down” with her and sat with her legs spread so that he could see her vagina. (ECF No. 1,
PageID.9.) Plaintiff filed a PREA on Defendant Nurkala. (Id.) Plaintiff states that he did not
receive a bedroll, sheets, pillowcases, blankets, towels, face cloths, soap, toothpaste, deodorant, or
cleaning supplies during his intake. (Id.)
On September 9, 2024, Plaintiff told Defendant Kowalski that he needed a bedroll. At the
time, Defendant Kowalski was wearing someone else’s uniform and ID so Plaintiff did not find
out her name until later. (Id.) On September 10, 2024, Plaintiff took a piece of paper and wrote to
Defendant Kowalski regarding his continued need for a bedroll. Plaintiff also asked for his legal
property, personal hygiene supplies, and clothing. (Id., PageID.10.) Plaintiff requested a bedroll

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and other property from non-parties Corrections Officers Beasley and Messy. (Id.) Plaintiff further
states that he wrote to the Food Service Director because he believed that his food was being
poisoned based on the fact that he was feeling ill and had chills and aches. (Id.)
On September 11, 2024, Plaintiff asked Defendant Kowalski about his bedroll, personal
property, and incentive television. (Id.) Plaintiff states that Defendant Kowalski looked him in the
eye and stated that she wanted his hand, and that she had soft buttocks. (Id.) Plaintiff told her that
he planned to write a PREA and he did. (Id.) In retaliation, Defendant Kowalski wrote a
misconduct ticket on Plaintiff claiming that he had grabbed her hand. (Id.)
Plaintiff asserts that he has broken “solar shields” and that they have not been replaced.
Plaintiff also states that he has various ailments such as pain in his back, foot, chest, and heel, as
well as migraines. Plaintiff saw Defendant Skinner, who did not address Plaintiff’s health issues,
but instead told Plaintiff that she wanted his penis. (Id., PageID.11.) Plaintiff states that Defendant
Kowalski was overly familiar with STG members in the prison and that Plaintiff received threats
from them after Defendant Kowalski told them that Plaintiff had written a grievance on her. (Id.)
Plaintiff claims that Defendant Dunbar ignored Plaintiff’s concern regarding his job classification.
(Id.)
On September 13, 2024, Plaintiff finally got some of his property. (Id., PageID.12.) On the
same date, Defendant Kowalski refused to take Plaintiff’s outgoing legal mail and told him to write
his grievances. (Id.) Defendant Kowalski subsequently walked over to an STG member and said,
“that’s him Preston.” (Id.) Plaintiff claims that he has received additional threats from STG
members. Plaintiff consequently asked to be transferred, to no avail. (Id.)
The Court concludes that Plaintiff has failed to allege any facts which support a finding
that he was in imminent danger at the time he filed this lawsuit. Initially, the Court notes that

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Plaintiff’s allegations regarding sexual harassment and the denial of property for a period less than
a week fail to rise to the level of imminent danger. Moreover, the Sixth Circuit has held that
“isolated, brief, and not severe” instances of sexual harassment such as alleged by Plaintiff in this
case, without more, do not give rise to Eighth Amendment violations. Jackson v. Madery, 158 F.
App’x 656, 662 (6th Cir. 2005) (finding that harassing comments, even coupled with one minor
instance of sexualized touching during a search, fall short of an Eighth Amendment violation),
abrogated in other part by Maben v. Thelen, 887 F.3d 252 (6th Cir. 2018); Violett, 76 F. App’x at
27 (an offer of sexual favors is not sufficient to state Eighth Amendment claim); Johnson v. Ward,
No. 99-1596, 2000 WL 659354, at *1 (6th Cir. May 11, 2000) (“Johnson’s allegation that Ward
made an offensive sexual remark to him does not rise to the level of a constitutional violation [as
such is merely verbal abuse].”). Other courts have agreed. See, e.g., Davis v. Goord, 320 F.3d 346,
353 (2d Cir. 2003); Keenan v. Hall, 83 F.3d 1083, 1092 (9th Cir. 1996); Purcell v. Coughlin, 790
F.2d 263, 265 (2d Cir. 1986).
In addition, Plaintiff’s claims regarding the denial of health services are wholly conclusory.
He fails to identify any individual action taken by any individual Defendant to deprive him of
medical care, or that would rise to the level of “inhumane” conditions or cruel and unusual
punishment.
Moreover, Plaintiff’s conclusory assertion that he believed his religious diet was poisoned
fails to demonstrate that he is in imminent danger of serious physical injury. Plaintiff has routinely
made similar allegations about officials at different prisons, beginning as early as 2003, which this
Court held were inadequate to state a claim because they were conclusory. See Preston v. Duney,
No. 2:03-cv-253 (W.D. Mich. Jan. 6, 2004) (dismissing for failure to state a claim Plaintiff’s
complaint that the defendant must have tampered with his meal at the Marquette Branch Prison

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because he felt an immediate throbbing on both sides of his neck after the defendant gave him his
food tray); Preston v. Burch, No. 1:03-cv-581 (W.D. Mich.) (attaching grievances alleging Oaks
Correctional Facility personnel poisoned his food on numerous occasions); see also Preston v.
U.P. Health Sys. et al., No. 2:16-cv-201 (W.D. Mich.) (alleging that health services ignored his
conclusory complaints that personnel at the Marquette Branch Prison poisoned his food on many
occasions, causing him head and chest pain). And this Court previously has denied leave to proceed
in forma pauperis under the imminent-danger exception based on nearly identical, wholly
conclusory allegations that different defendants at ICF poisoned his food in December 2017 and
again in 2024. See Preston v. Davids, No. 1:24-cv-416; Preston v. Rewerts et al., No. 1:24-cv-304;
Preston v. Smith et al., No. 1:18-cv-84. Under these circumstances, Plaintiff’s conclusory
allegations fail to contain sufficient facts to demonstrate that he is in imminent danger of serious
physical injury from consuming allegedly poisonous food.
In addition, “[a] physical injury is ‘serious’ for purposes of § 1915(g) if it has potentially
dangerous consequences such as death or severe bodily harm. Minor harms or fleeting discomfort
don’t count.” Gresham v. Meden, 938 F.3d 847, 850 (6th Cir. 2019). Plaintiff’s allegations that he
suffered chills, aches, and pains as a result of food poisoning (ECF No. 1, PageID.10) do not rise
to this level.
Finally, Plaintiff’s claim that Defendant Kowalski caused other STG prisoners to threaten
Plaintiff is also conclusory. Plaintiff fails to allege facts regarding the nature or dates of such
threats. Nor does Plaintiff allege facts showing that he was actually in danger of being assaulted.
Conclusory allegations of unconstitutional conduct without specific factual allegations fail to state
a claim under § 1983. See Ashcroft v. Iqbal, 556 U.S. 662, 678–79 (2009); Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007).

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Accordingly, Plaintiff is barred from proceeding in forma pauperis under § 1915(g).
Plaintiff also has not paid the $405.00 civil action filing fees applicable to those not permitted to
proceed in forma pauperis. The Court will therefore dismiss this action without prejudice. See
Dupree v. Palmer, 284 F.3d 1234, 1236 (11th Cir. 2002) (“[T]he proper procedure is for the district
court to dismiss the complaint without prejudice when it denies the prisoner leave to proceed in
forma pauperis pursuant to the three strikes provision of § 1915(g).”). Plaintiff is free to refile his
complaint as a new action in this Court if he submits the filing fees at the time that he initiates the
new action.
Conclusion
For the foregoing reasons, the Court will deny Plaintiff leave to proceed in forma pauperis.
The Court will dismiss this action without prejudice to Plaintiff’s right to refile his complaint as a
new action in this Court with the full civil action filing fees.2
For the same reasons that the Court dismisses the action, the Court discerns no good-faith
basis for an appeal. See 28 U.S.C. § 1915(a)(3); McGore v. Wrigglesworth, 114 F.3d 601, 611 (6th
Cir. 1997). Further, should Plaintiff appeal this decision, he must pay the $605.00 appellate filing
fee in a lump sum, because he is prohibited from proceeding in forma pauperis on appeal by 28
U.S.C. § 1915(g).
An order and judgment consistent with this opinion will be entered.

Dated: November 22, 2024

/s/ Hala Y. Jarbou
HALA Y. JARBOU
CHIEF UNITED STATES DISTRICT JUDGE

2

Because Plaintiff has the opportunity to refile his complaint as a new action in this Court by
paying the full civil action filing fees at the time of filing the new action, the Court will not assess
the district court filing fees in the present action.
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