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Case 1:13-cv-00763-GJQ-HWB Doc #3 Filed 07/30/13 Page 1 of 5 Page ID#42

UNITED STATES OF AMERICA

UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION



JUIVONNE LITTLEJOHN,

Plaintiff,

Case No. 1:13-cv-763

v.

Honorable Gordon J. Quist

UNKNOWN RICHARDSON et al.,

____________________________________/

Defendants.

OPINION DENYING LEAVE

TO PROCEED IN FORMA PAUPERIS - THREE STRIKES

Plaintiff Juivonne Littlejohn, a prisoner incarcerated at Ionia Correctional Facility

(ICF), filed a complaint pursuant to 42 U.S.C. § 1983. Plaintiff 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 within

twenty-eight (28) days of this opinion and accompanying order, and if Plaintiff fails to do so, the

Court will order that his action be dismissed without prejudice. Even if the case is dismissed,

Plaintiff will be responsible for payment of the $400.00 filing fee in accordance with In re Alea,

286 F.3d 378, 380-81 (6th Cir. 2002).

Discussion

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

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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 put into place 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 proceed-
ings 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); accord Pointer v. Wilkinson, 502 F.3d 369, 377 (6th Cir. 2007) (citing

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Wilson, 148 F.3d at 604-06); Rodriguez v. Cook, 169 F.3d 1176, 1178-82 (9th Cir. 1999); Rivera

v. Allin, 144 F.3d 719, 723-26 (11th Cir. 1998); Carson v. Johnson, 112 F.3d 818, 821-22 (5th Cir.

1997).

Plaintiff has been an active litigant in the federal courts in Michigan. The Court has

dismissed more than three of Plaintiff’s lawsuits for failure to state a claim. See Littlejohn v. Green

et al., No. 2:07-cv-213 (W.D. Mich. Jan. 16, 2008); Littlejohn v. McGinnis, No. 2:98-cv-243 (W.D.

Mich. Apr. 5, 1999); Littlejohn v. Alexander, No. 2:91-cv-244 (W.D. Mich. Nov. 27, 1991);

Littlejohn v. Houseworth, No. 2:91-cv-255 (W.D. Mich. Mar. 25, 1992). Although two of the

dismissals were entered before enactment of the PLRA on April 26, 1996, the dismissals

nevertheless count as strikes. See Wilson, 148 F.3d at 604. Plaintiff also has been denied leave to

proceed in forma pauperis in previous cases because he has three strikes. See, e.g., Littlejohn v.

Caruso et al., 2:10-cv-316 (W.D. Mich. May 6, 2011).

Moreover, Plaintiff’s allegations do not fall within the exception to the three-strikes

rule because he does not allege any facts establishing that he is under imminent danger of serious

physical injury. Congress did not define “imminent danger” in the PLRA, but it is significant that

Congress chose to use the word “imminent,” a word that conveys the idea of immediacy.

“Imminent” is “Near at hand . . . impending; on the point of happening; threatening, menacing,

perilous. Something which is threatening to happen at once, something close at hand, something

to happen upon the instant . . . and on the point of happening.” BLACK’S LAW DICTIONARY, 514-15

(6th ed. 1991). “Imminent” is also defined as “ready to take place, near at hand, impending,

hanging threateningly over one’s head, menacingly near.” WEBSTER’S THIRD NEW INTERNATIONAL

DICTIONARY, 1130 (1976). “Imminent danger” is “such an appearance of threatened and impending

injury as would put a reasonable and prudent man to his instant defense.” BLACK’S LAW

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DICTIONARY, 515 (6th ed. 1991). The Sixth Circuit has recognized the standard adopted by other

circuit courts:

While the Sixth Circuit has not defined the term “imminent danger” for purposes of
this section, other Circuits have held that to meet the requirement, 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. See, e.g., Ciarpaglini v. Saini,
352 F.3d 328, 330 (7th Cir.2003); Abdul-Akbar v. McKelvie, 239 F.3d 307, 313 (3d
Cir.2001) (en banc). Thus a prisoner’s assertion that he or she faced danger in the
past is insufficient to invoke the exception. Id. Other Circuits also have held that
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,” Ciarpaglini,
352 F.3d at 331, or are “‘clearly baseless’ (i.e. are fantastic or delusional and rise to
the level of ‘irrational or wholly incredible).’” Gibbs v. Cross, 160 F.3d 962, 967
(3d Cir.1998) (quoting Denton v. Hernandez, 504 U.S. 25, 33 (1992)).

Rittner v. Kinder, 290 F. App’x 796, 797-98 (6th Cir. 2008).

In his complaint, Plaintiff alleges a vast conspiracy by the Defendant ICF employees

to retaliate against him for exercising his right to make verbal or written complaints against them.

Among other acts of retaliation, Plaintiff alleges that, “Def #1 made threat to poisen [sic] my food

and taser me to harm me soon as possible to cause enormous physical injury and/or death.”

(Compl., docket #1, Page ID#4.) It strains credulity that a corrections officer would make the

specific threat alleged by Plaintiff. Plaintiff does not claim that he has suffered any physical harm

whatsoever at the hands of Defendants. As presented, Plaintiff’s allegations are insufficient to

establish that he is in real and proximate danger of serious physical injury. Consequently, Plaintiff

may not proceed under the imminent danger exception.

In light of the foregoing, § 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

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fails to pay the filing fee within the 28-day period, his case will be dismissed without prejudice, but

he will continue to be responsible for payment of the $400.00 filing fee.

Dated: July 30, 2013

/s/ Gordon J. Quist

GORDON J. QUIST

UNITED STATES DISTRICT JUDGE

SEND REMITTANCES TO THE FOLLOWING ADDRESS:
Clerk, U.S. District Court
399 Federal Building
110 Michigan Street, NW
Grand Rapids, MI 49503

All checks or other forms of payment shall be payable to “Clerk, U.S. District Court.”

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