Johnson 753595 v. Baker

• Court: District Court, W.D. Michigan
• Decided: June 10, 2024
• Docket: 2:24-cv-00087
• Status: Unknown

Opinion

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF MICHIGAN NORTHERN DIVISION ______ DARREN DEON JOHNSON, Plaintiff, Case No. 2:24-cv-87 v. Honorable Robert J. Jonker UNKNOWN BAKER et al., Defendants. ____________________________/ OPINION This is a civil rights action brought by a state prisoner under 42 U.S.C. § 1983. 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).

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 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. 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,

in forma pauperis status under 28 U.S.C. § 1915.” https://www.uscourts.gov/services-forms/fees/ district-court-miscellaneous-fee-schedule. and arguments that the rule constitutes a bill of attainder and is ex post facto legislation. Wilson v. Yaklich, 148 F.3d 596, 604–06 (6th Cir. 1998). 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, e.g., Order & J., Johnson v.

Quist, No. 2:12-cv-11907 (E.D. Mich. July 10, 2012); Op., Order & J., Johnson v. Kuehne, No. 2:12-cv-12878 (E.D. Mich. July 31, 2012); Order & J., Johnson v. Harrison, No. 2:12-cv-12543 (E.D. Mich. Aug. 2, 2012). Additionally, on multiple occasions, Plaintiff has been denied leave to proceed in forma pauperis by this Court, the United States District Court for the Eastern District of Michigan, and the Sixth Circuit Court of Appeals. The present suit is one of scores that Plaintiff has filed during his incarceration. In fact, Plaintiff filed more than a dozen lawsuits in the federal district courts in 2023. Indeed, Plaintiff has filed so many frivolous lawsuits that the United States District Court for the Eastern District of Michigan has enjoined Plaintiff from filing any new action without first obtaining leave of court, Johnson v. Schultz, No. 2:22-cv-11056, 2022 WL 1569281, at *2 (E.D. Mich. May 18, 2022), a

restriction that the Sixth Circuit concluded was “justified by Johnson’s record of engaging in vexatious litigation.” Order, Johnson v. Correctional Officer Schultz, No. 22-1520, at 3 (6th Cir. Jan. 13, 2023). As explained below, Plaintiff’s allegations in the present action 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 is currently incarcerated at the Kinross Correctional Facility, which is where he alleges the events of which he complains occurred. Plaintiff sues Correctional Officers Unknown Baker and Unknown Quinn. Plaintiff alleges that non-party Physicians Assistant Austin has diagnosed him with “a chronic testicle that is in pain, and penis pain.” (Compl, ECF No. 1, PageID.3.) Plaintiff contends that Austin “has even provided an ultrasound to see what is causing the pains.” (Id.) According to Plaintiff, this is a serious medical need. Plaintiff goes on to assert that in the beginning of May of 2024, he notified Defendants about his medical condition and that he experienced pelvic pain from holding his urine and bowel movements. (Id.) This was during count time, when Defendants were performing rounds. (Id.) According to Plaintiff, Defendants told him that they did not care, causing Plaintiff to “go through excruciating and unnecessary wanton infliction of pain.” (Id.) Plaintiff states that he was on toplock at the time, and that Defendants’ refusal to allow him to go to the bathroom caused him pain because he was forced to hold his urine and bowel movements. (Id.) Plaintiff alleges that

Defendants Baker and Quinn did not allow him to use the bathroom again during rounds on May 13, 2024. (Id.) Plaintiff states that his testicle and penis pain has become worse and continues to become worse every day, and that he experiences pain in his stomach and rectum when he is forced to hold his urine and bowel movements. (Id.) Plaintiff also vaguely mentions that Defendants have issued him “around four” misconducts. (Id.) He contends that he “is now going through different excruciating pains every day and additional pains.” (Id.) Based on the foregoing, Plaintiff asserts Eighth Amendment claims against Defendants. The Court notes that the Sixth Circuit has held that “a plaintiff who alleges a danger of serious harm due to a failure to treat a chronic illness or condition satisfies the imminent-danger

exception under § 1915(g), as incremental harm that culminates in a serious physical injury may present a danger equal to harm that results from an injury that occurs all at once.” Vandiver, 727 F.3d at 587. In 2019, the Sixth Circuit provided the following definition of a physical injury: “A physical injury is ‘serious’ for purposes of § 1915(g) if it has potentially dangerous consequences such as death or serious bodily harm. Minor harms or fleeting discomfort don’t count.” Gresham v. Meden, 938 F.3d 847, 850 (6th Cir. 2019). As an initial matter, while Plaintiff states that he has been diagnosed with a testicular condition and that he experiences excruciating pain when he has to hold his urine and bowel movements, Plaintiff does not include facts from which this Court could infer that his condition may lead to death or serious bodily harm. Moreover, Plaintiff is not alleging that Defendants have withheld treatment for his condition, and indeed, nothing in the complaint suggests that Defendants, who are correctional officers, would have any responsibility for providing such treatment. Rather, Plaintiff suggests that Defendants have demonstrated deliberate indifference by

not allowing him to use the bathroom on two occasions during rounds. However, as noted above, “[a]llegations of past dangers are insufficient to invoke the [imminent danger] exception.” Taylor, 508 F. App’x at 492. Plaintiff’s complaint is devoid of facts from which the Court could infer that Defendants are continuously denying Plaintiff access to the bathroom during rounds. In sum, none of the allegations set forth by Plaintiff support an inference that a danger of serious physical injury was real and proximate at the time he filed his complaint. In reaching this conclusion, the Court does not discount the pain Plaintiff alleges he experiences. Plaintiff’s conditions, however, are “described with insufficient facts and detail to establish that he is in danger of imminent physical injury” from Defendants. See Rittner, 290 F. App’x at 798 (footnote omitted). That is not to say that Plaintiff’s allegations are “ridiculous . . .

baseless . . . fantastic—or delusional . . . irrational or wholly incredible.” Vandiver, 727 F.3d at 585. They are simply insufficient. 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: June 10, 2024 /s/ Robert J. Jonker Robert J. Jonker 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.