Burnett 200640 v. Washington

• Court: District Court, W.D. Michigan
• Decided: March 29, 2024
• Docket: 1:24-cv-00155
• Status: Unknown

Opinion

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION ______

MICHAEL ANGELO BURNETT,

Plaintiff, Case No. 1:24-cv-155 v. Hon. Hala Y. Jarbou HEIDI E. WASHINGTON, et al.,

Defendants. ____________________________/ OPINION 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. (ECF No. 2 and 3.) 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). That means payment should precede preliminary review pursuant to 28 U.S.C. § 1915A(b) and 42 U.S.C. § 1997e(c), which the Court is required to conduct prior to the service of the complaint. See In re Prison Litigation Reform Act, 105 F.3d 1131, 1131, 1134 (6th Cir. 1997); McGore v. Wrigglesworth, 114 F.3d 601, 604–05 (6th Cir. 1997). Service of the complaint on the named defendants is of particular significance in defining a putative defendant’s relationship to the proceedings. “An individual or entity named as a defendant is not obliged to engage in litigation unless notified of the action, and brought under a court’s authority, by formal process.” Murphy Bros. v. Michetti Pipe Stringing, Inc., 526 U.S. 344, 347 (1999). “Service of process, under longstanding tradition in our system of justice, is fundamental to any procedural imposition on a named defendant.” Id. at 350. “[O]ne becomes a party officially, and is required to take action in that capacity, only upon service of a summons or other authority-asserting measure stating the time within which the party served must appear and defend.” Id. (citations omitted). That is, “[u]nless a named defendant agrees to waive service, the summons continues to function as the sine qua non directing an individual or entity to participate in a civil action or forgo procedural or substantive

rights.” Id. at 351. Therefore, the Prison Litigation Reform Act, Pub. L. No. 104-134, 110 Stat. 1321 (1996) (PLRA), by requiring courts to review and even resolve a plaintiff’s claims before service, creates a circumstance where there may only be one party to the proceeding—the plaintiff—at the district court level and on appeal. See, e.g., Conway v. Fayette Cnty. Gov’t, 212 F. App’x 418 (6th Cir. 2007) (stating that “[p]ursuant to 28 U.S.C. § 1915A, the district court screened the complaint and dismissed it without prejudice before service was made upon any of the defendants . . . [such that] . . . only [the plaintiff] [wa]s a party to this appeal”). 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).

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. Discussion The Prison Litigation Reform Act (PLRA), Pub. L. No. 104-134, 110 Stat. 1321 (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 on the grounds that the cases were frivolous, malicious, and/or failed to state a claim. See Op. & J., Burnett v. Marschke et al., No. 2:09-cv-225 (W.D. Mich. Feb. 5, 2010); Op. & J., Burnett v. Hofbauer et al., No. 2:09-cv-192 (W.D. Mich. Dec. 2, 2009); Op. & J., Burnett v. Caruso et al., No. 2:09-cv-180 (W.D. Mich. Oct. 8, 2009); Op.

& J., Burnett v. Hill et al., No. 2:09-cv-39 (W.D. Mich. Mar. 6, 2009); Op., Order & J., Burnett v. Caruso et al., No. 2:08-cv-168 (W.D. Mich. Jan. 5, 2009). In addition, Plaintiff has been denied leave to proceed in forma pauperis under the three-strikes rule in numerous cases. 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.

In the present complaint, Plaintiff sues MDOC Director Heidi E. Washington and the following Lakeland Correctional Facility officials: Lieutenants Unknown Tagget, Unknown Boris, and Unknown Carter, Sergeants Unknown Hudson, Unknown Garrett, Unknown Mckinbin, Unknown Cook, Unknown Clemons, Unknown Wright, Unknown Burrow, and Unknown Parties #1 and #2 named as John Does. Plaintiff also sues Corrections Officers Unknown Parties #3 and #4 who are both named as Unknown Mitchie, Unknown Stigler, and Unknown Cueller, Assistant Resident Unit Supervisor Wendy Lane, Grievance Coordinator J. Rohrig, and Unknown Parties, named as Jane Does #1–20. (Compl., ECF No. 1, PageID.3-8.) Plaintiff alleges that from January 2019 until the filing of this complaint, Defendants

Cuellar, Lane, Tagget, Boris, Huson, Garrett, Stigler, Unknown Parties #3 and #4, and Unknown Parties Jane Does #1-20 “programmed the Personal Protection Device Computer System to commit the physical act of rape by programming it to grip and gyrate Plaintiff’s hips and to repeatedly penetrate Plaintiff’s anus.” (Id., PageID.10-11.) Defendants Boris, Garrett, Hudson, Mckinbin, Burrow, Stollings, Mitchie #1, Mitchie #2, Stingler, and Jane Does #1–8 “are on the personal protection device computer systems walking and talking with officers and Plaintiff.”2 (Id., PageID.3-8.) Plaintiff states that the “Personal

2 In this opinion, the Court corrects the capitalization and punctuation in quotations from Plaintiff’s complaint. Protection Device Computer System is an atmospheric radiological device that cannot be seen, that can go through layers of clothing and penetrate the skin.” (Id., PageID.19.) Plaintiff states that Defendants continue to program the personal protection device computer system to deposit semen and spit in Plaintiff’s mouth. (Id., PageID.11.) Plaintiff contends that Defendants Tagget, Boris Carter, Hudson, Garrett, Mckinbin, Cook, Clemons, Wright, Barrow and Does authorized,

approved of, or acquiesced in the unlawful rape and other sex acts committed on Plaintiff as described in this complaint by giving tacit approval or directly participating in the assaults. (Id., PageID.11-12.) Plaintiff also asserts that Defendants “programed the Personal Protection Device Computer System to record in their own voice racist slurs to be played in Plaintiff’s ear during the daily rapes and other sex acts.” (Id., PageID.12.) Plaintiff states that as a result of the ongoing assaults, he suffers from anal pain, bleeding, swelling, nausea, vomiting, and anxiety. (Id.) Plaintiff alleges that in 2021, Defendants used the Personal Protection Device Computer System to infect him and his cell mate with Covid-19. (Id., PageID.13.) This caused Plaintiff to suffer from weight loss, shortness of breath, fever, migraine headaches, and memory loss. (Id.,

PageID.15.) Plaintiff also asserts that Defendants use the Personal Protection Device Computer System to repeatedly administer electric shocks to various body parts. (Id.) Plaintiff asserts that these actions were in retaliation for his use of the grievance system. (Id., PageID.16-17.) The Court notes that the allegations set forth above are similar to allegations in three complaints that Plaintiff filed in 2020. See Burnett v. Macauley et al., No. 1:20-cv-1116 (W.D. Mich.); Burnett v. Wilborn et al., No. 1:20-cv-1161 (W.D. Mich.); Burnett v. Washington, No. 1:20-cv-1173 (W.D. Mich.).3 In those complaints, Plaintiff alleged that various officials used the

3 Plaintiff’s allegations are also similar to allegations in complaints he filed in the United States District Court for the Eastern District of Michigan. See Burnett v. Jenkins et al., No. 2:19-cv-13513 (E.D. Mich.) (alleging that officials at the Macomb Correctional Facility and Ionia Correctional prison “Safety System” to deliver feces and urine directly into Plaintiff’s mouth over a period of years. Plaintiff admitted that he suffered from paranoia and schizophrenia. The Court ultimately determined that Plaintiff’s allegations of imminent danger in all three cases were irrational and clearly baseless, and, therefore, did not support a conclusion that Plaintiff was in imminent danger of serious physical injury within the meaning of § 1915(g). See Vandiver, 727 F.3d at 585; Rittner,

290 F. App’x at 798. Subsequently, in Burnett v. Morrison et al., No. 1:23-cv-1091 (W.D. Mich. Jan. 2, 2024), Plaintiff filed a complaint alleging that named defendants used “personal protection device computer systems,” on which they can “walk and talk with officers and Plaintiff,” to “assault Plaintiff with officers’ waste” and to “shout[] racial slurs and profanity in Plaintiff’s ear twenty-four hours a day.” Id., ECF No. 1, PageID.4. Although Plaintiff alleged that Defendants used “personal protection device computer systems,” rather than the prison “Safety System,” the Court found that the allegations were otherwise analogous to his allegations in the above-discussed 2020 cases. The Court concluded that Plaintiff’s allegations of imminent danger were “fantastic or

delusional and rise to the level of irrational or wholly incredible” and did not support a conclusion that Plaintiff was in imminent danger of serious physical injury. Id., ECF No. 6, PageID.65-66. In this action, as in Plaintiff’s complaint in Burnett v. Morrison et al., No. 1:23-cv-1091, he alleges that Defendants have used the “Personal Protection Device Computer System,” to

Facility delivered feces and urine into his mouth using the prison safety systems); Burnett v. Walsh et al., No. 2:18-cv-11063 (E.D. Mich.) (alleging that officials at the Macomb Correctional Facility used the Safety System to deliver feces and other bodily fluids into his mouth); Burnett v. Herron et al., No. 5:18-cv-12471 (E.D. Mich.) (alleging that officials at the Macomb Correctional Facility put feces into his mouth at least three times a week). Additionally, Plaintiff’s allegations are similar to allegations in the complaint that he filed in Burnett v. Corrigan et al., No. 2:22-cv-129 (W.D. Mich.), in which he alleged that officials at Chippewa Correctional Facility sprayed human waste in his face and mouth using an industrial-sized spray bottle. assault Plaintiff in various ways at any time day or night. As the Court concluded in Plaintiff’s previous cases set forth above, the Court now concludes that Plaintiff’s present allegations of imminent danger are “fantastic or delusional and rise to the level of irrational or wholly incredible” and do not support a conclusion that Plaintiff is in imminent danger of serious physical injury. Rittner, 290 F. App’x at 798.

In sum, Plaintiff has accrued three strikes, and he has not demonstrated that he is in imminent danger of serious physical injury. Thus, 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 full civil action filing fees applicable 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 applicable full civil action filing fees.4 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, 114 F.3d at 611. Further, should Plaintiff

4 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. 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: March 29, 2024 /s/ Hala Y. Jarbou HALA Y. JARBOU CHIEF UNITED STATES DISTRICT JUDGE