Opinion
CASE NO. 12-CV-11096
04-27-2012
JOHN A. CORRION, #601943, Plaintiff, v. DANIEL H. HEYNS, R. D. RUSSELL, PAUL KLEE, W. CHAPMAN, L. McROBERTS, C. HEMRY, N. FETTIG, D. MESSER, CO GRAY, CO WARNER, CO J. WRIGHT, and G. HISSONG, Defendants.
HONORABLE DENISE PAGE
HOOD
ORDER
(1) DENYING LEAVE TO PROCEED WITHOUT
PREPAYMENT OF THE FILING FEE AND COSTS FOR THIS ACTION,
(2) DISMISSING THE COMPLAINT PURSUANT TO 28 U.S.C. § 1915(g),
AND (3) DENYING LEAVE TO APPEAL IN FORMA PAUPERIS
Plaintiff John A. Corrion is a state prisoner at Gus Harrison Correctional Facility in Adrian, Michigan. He recently filed a pro se civil rights complaint under 42 U.S.C. § 1983, an affidavit of indigence, and a letter asking the Court to serve his complaint on the defendants. The complaint challenges four prison misconduct reports. On December 8, 2011, Plaintiff was charged with having legal papers on his bunk; on December 9, 2011, he was charged with stealing sugar; on December 14, 2011, he was charged with having legal mail on his desk; and on February 9, 2012, he was charged with forgery. Plaintiff claims that the defendants are liable for abuse of process, extortion, and libel in connection with the misconduct proceedings. He also claims that the defendants caused him severe emotional anguish and deprived him of his right to confront witnesses at a misconduct hearing. He seeks money damages, as well as, declaratory and injunctive relief.
Under 28 U.S.C. § 1915(g), a prisoner may not bring a civil action without prepayment of the filing fee if, on three or more prior occasions, the prisoner brought a federal action that was dismissed as frivolous, as malicious, or for failure to state a claim on which relief may be granted. An exception exists where the prisoner is "under imminent danger of serious physical injury." Id.
A search of federal court records reveals that at least three of Plaintiff's prior complaints have been dismissed as frivolous or for failure to state a claim. See, e.g., Corrion v. Corrion, et al., No. 10-cv-10669 (E.D. Mich. June 21, 2010); Corrion v. Ludwick, No. 09-cv-11531 (E.D. Mich. July 13, 2009); and Corrion v. Latreille, No. 08- cv-15272 (E.D. Mich. Jan. 8, 2009). Plaintiff also has been denied leave to proceed without prepayment of the filing fee for having three or more cases dismissed as frivolous, malicious, or for failure to state a claim. See Corrion v. Caruso, et al., No. 09- cv-13159 (E.D. Mich. Jan. 28, 2010); Corrion v. Michigan, No. 10-cv-00980 (W.D. Mich. Oct. 20, 2010).
In his affidavit of indigence, Plaintiff alleges that he is in imminent danger of physical injury due to being sixty-three years of age, 140 pounds, and infirm. Plaintiff claims that, on January 15, 2009, he was nearly fatally slashed by inmates while he was confined at another prison; on November 16, 2011, he was assaulted because he refused to give two extra slices of bread to an inmate; on November 18, 2011, he was assaulted because he reported the November 16, 2011 assault to the police; and on December 14, 2011, two inmates harassed and threatened him.
To qualify for the "imminent danger" exception to § 1915(g), the danger must exist when the plaintiff files his complaint. Pettus v. Morgenthau, 554 F.3d 293, 296 (2d Cir. 2009) (collecting cases); Percival v. Gerth, 443 F. App'x 944, 946 (6th Cir. 2011). The danger alleged by Plaintiff occurred months before he filed his complaint. One incident occurred years earlier at a different prison, and the most recent incident involved mere threats and harassment by inmates. The alleged threats and mistreatment by other inmates do not constitute imminent danger of serious physical injury in the absence of "any immediate or specific danger of future serious physical injury." Davis v. Cook, 4 F. App'x 261, 262 (6th Cir. 2001).
Furthermore, none of the cited incidents relate to the allegations in the complaint. Because there is no nexus between the claims in the complaint and the imminent danger alleged by Plaintiff, he has not satisfied the exception to § 1915(g). Pettus, 554 F.3d at 296-98. Consequently, Plaintiff may not proceed without prepayment of the filing fee for this action. His complaint [Docket No. 1, filed March 12, 2012] is DISMISSED without prejudice for failure to pay the filing fee, and his request for service of process [Docket No. 4, filed March 26, 2012] is denied as moot. If Plaintiff appeals this decision, he must prepay the appellate filing fee of $455.00 because he is prohibited by § 1915(g) from proceeding in forma pauperis on appeal.
______________________
Denise Page Hood
United States District Judge
I hereby certify that a copy of the foregoing document was served upon John Corrion #601943, 2727 E. Beecher Street, Adrian, MI 49221 and counsel of record on April 27, 2012, by electronic and/or ordinary mail.
LaShawn R. Saulsberry
Case Manager