Honorable Robert Holmes Bell

OPINION DENYING LEAVE TO PROCEED IN FORMA PAUPERIS - THREE STRIKES

Plaintiff Robert D. Sango, a prisoner incarcerated at Ionia Correctional Facility, 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 applicable to those not permitted to proceed in forma pauperis within twenty-eight (28) days of this opinion and accompanying order. 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 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 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.

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 they were frivolous or failed to state a claim. See Sango v. Lewis et al., No. 1:14-cv-342 (W.D. Mich. July 18, 2014); Sango v. Huss, No. 1:14-cv-2 (W.D. Mich. June 12, 2014); Sango v. Hammond et al., No. 1:14-cv-283 (W.D. Mich. May 6, 2014); Sango v. Novak, No. 1:14-cv-343 (W.D. Mich. Apr. 23, 2014). In addition, Plaintiff repeatedly has been denied leave to proceed in forma pauperis in this Court because he has three strikes. See Sango v. Eryer et al., No. 1:15-cv-71 (W.D. Mich. Feb. 12, 2015); Sango v. Nevins et al., No. 1:15-cv-179 (W.D. Mich. Mar. 3, 2015); Sango v. Michigan State Office of Administrative Hearings & Rules et al., No. 1:14-cv-1272 (W.D. Mich. Jan. 13, 2015); Sango v. Curtis et al., No. 1:14-cv-823 (W.D. Mich. Aug. 14, 2014); Sango v. Wakley et al., 1:14-cv-703 (W.D. Mich. July 8, 2014).

Moreover, Plaintiff's allegations do not fall within the exception to the three-strikes rule for a prisoner under imminent danger of serious physical injury. 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.").

Plaintiff, who receives a vegan meal accommodation, claims that Food Service Director Jennifer Daughdree has served nutrient-deficient vegan meals from canned or overcooked food. Plaintiff also alleges that only one vegan meal tray was sent to segregation to be shared by Plaintiff and another prisoner for about two months "earlier this year." (Compl., docket #1, Page ID#2.) After writing to Daughdree, Plaintiff received a vegan tray about "[two-thirds] the size of a normal tray." (Id.)

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. First, sharing a meal with another prisoner in the past does not fall within the exception to the three-strikes rule. See Rittner, 290 F. App'x at 797-98 (past danger does not satisfy the imminent- danger exception). Moreover, Plaintiff does not allege that any deficiencies in his vegan meals place him in danger of a serious physical injury. Even if Plaintiff has suffered weight loss, which he does not allege, the fact that a plaintiff has lost some weight, standing alone, falls short of establishing serious physical injury. See Sims v. Caruso, No. 1:11-cv-92, 2011 WL 672232, at *2 (W.D. Mich. Feb. 18, 2011) (finding weight loss, standing alone, falls short of establishing serious physical injury); Hernandez v. Ventura Cnty., No. CV 09-7838 GHK (JC), 2010 WL 3603491, at **5-6 (C.D. Cal. July 27, 2010) (finding that allegation of weight loss due to smaller portion sizes of food did not constitute "imminent danger of serious physical injury"); Sayre v. Waid, No. 1:08cv142, 2009 WL 249982, at *3 (N.D. W.Va. Feb. 2, 2009) (claim that food provided by prison caused inmate to lose 30 pounds insufficient to demonstrate "serious physical injury" under § 1915(g): "[W]eight loss, in and of itself, is not indicative of a serious physical injury [for purposes of section 1915(g) ]."). Because Plaintiff fails to allege facts showing that he is in real and proximate danger of serious physical injury, he cannot invoke the exception to the three-strikes rule.

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 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: April 13, 2015

/s/ Robert Holmes Bell

ROBERT HOLMES BELL

UNITED STATES DISTRICT JUDGE
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