UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

REGINALD EL, 

Plaintiff, 

 Case No. 14-14965 

v. HON. TERRENCE G. BERG 

CARMELLA SABAUGH, 

Defendant. 

 / 

OPINION AND ORDER DENYING LEAVE TO PROCEED IN FORMA 

PAUPERIS AND DISMISSING THE COMPLAINT (DKT. 1) WITHOUT 

PREJUDICE 

 Plaintiff Reginald El, also known as Reginald Miles and Sheik Hasan El,1 is a 

state prisoner presently confined at the Macomb Correctional Facility in New 

Haven, Michigan. He recently filed a pro se civil complaint against Carmella 

Sabaugh, the Clerk for Macomb County, Michigan. For the reasons that follow, the 

complaint will be summarily DISMISSED without prejudice. 

I. BACKGROUND 

 Plaintiff filed his pro se complaint on December 22, 2014. The complaint and 

exhibits appear to allege that state and county officials have prevented Plaintiff 

from obtaining information from governmental agencies by enacting and enforcing 

Michigan’s Freedom of Information Act (FOIA), Mich. Comp. Laws § 15.231, et seq. 

 

1See http://mdocweb.state.mi.us/OTIS2/otis2profile.aspx?mdocNumber 

=163990. 

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Section 15.231 of FOIA provides that 

all persons, except those persons incarcerated in state or local 

correctional facilities, are entitled to full and complete 

information regarding the affairs of government and the official 

acts of those who represent them as public officials and public 

employees, consistent with this act. The people shall be informed 

so that they may fully participate in the democratic process. 

Mich. Comp. Laws § 15.231 (emphasis added). In addition, the following section of 

FOIA states that the word “person” “does not include an individual serving a 

sentence of imprisonment in a state or county correctional facility in this state or 

any other state, or in a federal correctional facility.” Mich. Comp. Laws § 15.232(c). 

 Plaintiff contends that, by excluding prisoners from obtaining information 

through FOIA, their right of access to the courts is violated because they cannot 

obtain documentation to support their claims in court pleadings. Accordingly, 

Plaintiff seeks to have the Court enjoin enforcement of § 15.232(c) and to declare 

the statute unconstitutional and criminal. 

II. ANALYSIS 

 Plaintiff did not pay the filing fee for this action. Instead, he has asked the 

Court to waive court costs and fees. See Compl. at p. 2. However, under the “three 

strikes” provision of the Prison Litigation Reform Act of 1996 (PLRA), a prisoner 

may not bring a civil action or appeal without prepayment of the filing fee 

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. 

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28 U.S.C. § 1915(g). 

 A review of Plaintiff’s litigation history in federal court reveals that three of 

his previous cases were dismissed as frivolous or for failure to state a claim. See 

Miles El v. United States, et al., No. 2:06-cv-264 (W.D. Mich. June 4, 2007); Miles El 

v. MDOC, et al., No. 2:97-cv-39 (W.D. Mich. Aug. 4, 1997); and Miles El v. McGinnis, 

No. 2:97-cv-52 (W.D. Mich. Aug. 1, 1997). Plaintiff not only has three “strikes,” he 

has previously been warned that, due to his three “strikes,” he may not proceed 

without prepayment of the filing fee for his complaints. See “Order Denying Leave 

to Proceed In Forma Pauperis - Three Strikes,” Miles El v. Holder, et al., No. 2:10-

cv-258 (W.D. Mich. Oct. 13, 2010). Consequently, Plaintiff may proceed without 

prepayment of the filing fee for this action only if he is in “imminent danger of 

serious physical injury.” 28 U.S.C. § 1915(g). 

[T]o allege sufficiently imminent danger, . . . “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.” 

Ritter v. Kinder, 290 Fed. Appx. 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 Medical 

Management, 508 Fed. Appx. 488, 492 (6th Cir. 2012)] 

(“Allegations of past dangers are insufficient to invoke the 

exception.”); Percival v. Gerth, 443 Fed. Appx. 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, . . . 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 

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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 Fed. 

Appx. at 798 (internal quotation marks and citations omitted); see

also Taylor, 508 Fed. Appx. 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). 

 Plaintiff has not alleged that he was in “imminent danger of serious physical 

injury” when he filed his complaint, and nothing in the complaint suggests that he 

faced some real and proximate danger of serious physical injury at the time. As 

such, Plaintiff has failed to establish that his complaint falls within the exception to 

§ 1915(g). 

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III. CONCLUSION

 Based on the foregoing, Plaintiff’s request to have the fees and costs for this 

action waived is DENIED. IT IS FURTHER ORDERED that the complaint (Dkt. 

1) is summarily DISMISSED without prejudice pursuant to 28 U.S.C. § 1915(g). 

IT IS FURTHER ORDERED that an appeal from this order would be frivolous 

and, therefore, could not be taken in good faith, 28 U.S.C. § 1915(a)(3), or without 

prepayment of the appellate filing fee, 28 U.S.C. § 1915(g). 

SO ORDERED. 

Dated: February 6, 2015 s/Terrence G. Berg 

TERRENCE G. BERG 

UNITED STATES DISTRICT JUDGE 

Certificate of Service 

 

I hereby certify that this Order was electronically submitted on February 6, 

2015, using the CM/ECF system, a copy of this Order was also mailed to the 

Macomb Correctional Facility, located at 34265 26 Mile Road, New Haven, MI 

48048, directed to Plaintiff’s attention. 

 s/A. Chubb 

Case Manager 

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