Gordon v. Fisher et al

Filing 60

ORDER granting to a limited extent 56 Motion to Reopen Case and granting 57 Motion to Object. Gordons motion to reopen the case 56 is granted to the extent that the arguments raised in his motion to object 57 have been considered and rejec ted. The Order 55 adopting the Report and Recommendation stands. Gordon will be given a final opportunity to pay the $350.00 filing fee plus a $50.00 administrative fee within fourteen (14) days of this Order. Failure to do so will result in dismissal for want of prosecution without further notice. Signed by District Judge Daniel P. Jordan, III on April 19, 2017. (EH)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF MISSISSIPPI
NORTHERN DIVISION
MICHAEL LEE GORDON

PLAINTIFF

V.

CIVIL ACTION NO. 3:15CV592 DPJ-FKB

MARSHALL FISHER, ET AL.

DEFENDANTS
ORDER

This pro se prisoner action is before the Court on Plaintiff Michael Lee Gordon’s motion
to reopen the case [56] and motion to object to the Report and Recommendation [57].
Defendants Jose Santana and Christopher Zepher responded in opposition [59]. Plaintiff
declined to file a reply, and the time to do so has passed. The Court, having considered the
submissions of the parties along with the pertinent authorities, finds that Plaintiff’s motion to
reopen the case [56] should be granted to the extent that the arguments raised in his motion to
object [57] have been considered and rejected. The Order [55] adopting the Report and
Recommendation stands.
I.

Facts and Procedural History
Gordon, a federal inmate, filed this § 1983 action in August 2015, against multiple

defendants, challenging the conditions of his confinement during his temporary housing at
Central Mississippi Correctional Facility (“CMCF”) in Pearl, Mississippi. Compl. [1].
Magistrate Judge F. Keith Ball granted Gordon’s motion to proceed in forma pauperis (“ifp”).
Order [7]. Defendants Jose Santana and Christopher Zepher thereafter moved to revoke
Gordon’s ifp status pursuant 28 U.S.C. § 1915(g), which provides:
In no event shall a prisoner bring a civil action or appeal a judgment in a civil
action or proceeding under this section 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.
Gordon did not respond to the motion, and Judge Ball recommended revoking ifp status. R&R
[54]. In addition to addressing Gordon’s prior filings, Judge Ball also rejected any suggestion
that Gordon was in imminent danger of serious physical injury. Id.
Gordon did not file an Objection, and the Court adopted the unopposed Report and
Recommendation, revoking ifp status and giving Gordon thirty days to pay the filing fee. Order
[55]. Rather than pay the fee, Gordon asks the Court to reopen the case [56] and allow him to
object to the Report and Recommendation [57]. Defendants Santana and Zepher oppose these
requests [59].
II.

Analysis
Gordon’s filings present two issues: (1) has he presented grounds for relief pursuant to

Federal Rule of Civil Procedure 60(b) and (2) has he established “imminent danger” pursuant to
§ 1915(g).
Under Rule 60(b), the Court has discretion to relieve a party from an order under six
circumstances:
(1) mistake, inadvertence, surprise, or excusable neglect;
(2) newly discovered evidence that, with reasonable diligence, could not have
been discovered in time to move for a new trial under Rule 59(b);
(3) fraud (whether previously called intrinsic or extrinsic), misrepresentation, or
misconduct by an opposing party;
(4) the judgment is void;
(5) the judgment has been satisfied, released, or discharged; it is based on an
earlier judgment that has been reversed or vacated; or applying it prospectively is
no longer equitable; or
(6) any other reason that justifies relief.
Fed. R. Civ. P. 60(b). Gordon claims he never received Defendants’ motion to revoke his ifp
status or Judge Ball’s Report and Recommendation. Mot. [56] at 1. He therefore asks the Court

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to reopen the case and order the Clerk to provide him with a copy of both documents. Id. While
the Court has significant doubt regarding these claims, it will nevertheless consider the
objections Gordon raises in his second motion [57].
Under § 1915(g), a prisoner is barred from proceeding ifp after three strikes “unless the
prisoner is under imminent danger of serious physical injury.” “[C]onclusional allegations are
insufficient to show that [a prisoner] was under imminent danger of serious physical injury at the
time that he filed his complaint, notice of appeal, or motion to proceed IFP on appeal.” Smith v.
Blount, 258 F. App’x 630, 630 (5th Cir. 2007) (citing Banos v. O’Guin, 144 F.3d 883, 885 (5th
Cir. 1998)).
Judge Ball correctly noted that Gordon made only vague allegations regarding fear for his
safety from prison gangs at CMCF. R&R [54] at 3–4 (citing Compl. [1]; Am. Compl. [16]).
Judge Ball also observed that Gordon claimed in his Amended Complaint that he had been
attacked by his cellmate after being transferred to Parchman. Id. at 4 (citing Am. Compl. [16]).
Importantly, Gordon claimed the attack occurred on October 21, 2015, and he signed his
Amended Complaint on October 25, 2015. Id. As explained by Judge Ball, a claim of past
danger is insufficient to trigger the “imminent danger” exception. Id. (citing Davis v. Flagg, No.
4:10-CV-00053-DPJ, 2011 WL 3207742, at *2 (S.D. Miss. June 30, 2011)).
Gordon’s latest filing does not change the Court’s conclusion. In his motion to object to
the R&R, Gordon claims he was in “serious risk of danger” at CMCF when staff would take him
out of his cell “in shackles, handcuffs and a belly chain” in front of “known prisoner gang
members who threatened to harm, injure, and/or kill” him. Mot. [57] at 1. But these allegations
lack specificity as to when they took place, who was involved, and what was said. Such vague
allegations do not show imminent danger. See Cloud v. Stotts, 455 F. App’x 534, 535 (5th Cir.

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2011) (finding prisoner’s “bare assertions that he has been threatened at unspecified dates in the
past by inmates who have beaten other inmates at the direction of one of the defendants does not
rise to the level of a showing that he was in ‘imminent danger of serious physical injury’ when
he filed his complaint”); Duncan v. Hillman, No. 2:07-CV-145-KS-MTP, 2007 WL 2458446, at
*1 (S.D. Miss. Aug. 30, 2007) (finding plaintiff’s allegations regarding the conditions of his
confinement specifically the claims of retaliation, being threatened, and the defendants’ failure to
place him in a single cell and assign him a bottom bunk insufficient to meet the threshold
requirement of imminent danger of serious physical injury); see also Banos, 144 F.3d at 884–85
(finding prisoner’s claims that guards conducted body-cavity searches for purposes of sexual
harassment, used excessive force, and assaulted him did not allege or establish imminent danger
of physical injury); Bankhead v. King, No. 03-142, 2003 WL 21529822, at *3 (N.D. Tex. July 7,
2003) (allegations that prison guards used excessive force when removing plaintiff from his cell,
failed to protect him, harassed him, and conspired against him, and that these actions were in part
racially motivated, failed to establish imminent danger of serious physical injury).
Gordon also reiterates his allegations that upon transfer to Parchman he was denied
protective custody and suffered injuries in an assault by an inmate. Mot. [57] at 2. Again, the
“imminent danger” exception does not apply to past episodes, and this assault allegedly occurred
before the filing of the Amended Complaint. See King v. Livingston, 212 F. App’x 260, 262 (5th
Cir. 2006) (allegations of past attacks by inmates and prison officials which allegedly occurred
six weeks before complaint was filed were insufficient to establish imminent danger). Indeed,
Gordon is no longer in state custody. See Notice of Change of Address [44].
Thus, even considering the arguments raised in Gordon’s motion to object to the R&R
[57], revocation of ifp status is nevertheless appropriate.

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III.

Conclusion
The Court has considered all arguments raised by the parties; those not addressed would

not have changed the outcome. For the reasons stated, Gordon’s motion to reopen the case [56] is
granted to the extent that the arguments raised in his motion to object [57] have been considered
and rejected. The Order [55] adopting the Report and Recommendation stands.
When Gordon’s ifp status was revoked on November 8, 2016, he was given thirty (30)
days to pay the filing fee. He failed to do so, instead filing the instant motions on December 12
and 19, 2016. Gordon will be given a final opportunity to pay the $350.00 filing fee plus a
$50.00 administrative fee within fourteen (14) days of this Order. Failure to do so will
result in dismissal for want of prosecution without further notice.
SO ORDERED AND ADJUDGED this the 19th day of April, 2017.
s/ Daniel P. Jordan III
UNITED STATES DISTRICT JUDGE

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