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UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

ALLEN DANIEL, # 537193

Plaintiff,

CASE NO. 2:08-cv-13817

v. HON. ROBERT H. CLELAND

MAGISTRATE JUDGE PAUL J. KOMIVES

BLAINE LAFLER, et al,

Defendants.

___________________________/

REPORT AND RECOMMENDATION ON DEFENDANTS’ MOTION TO REVOKE

PLAINTIFF’S IN FORMA PAUPERIS STATUS

I. RECOMMENDATION: The Court should grant Defendants’ motion to revoke Plaintiff’s

in forma pauperis status.

II. REPORT

A. Introduction

This case was referred to me for pretrial case management pursuant to 28 U.S.C. §

636(b)(1). Doc. Ent. 33. 

On September 5, 2008, Plaintiff brought this prisoner civil rights action under 42 U.S.C.

§ 1983 alleging that prison staff at St. Louis Correctional Facility retaliated against him for his

prior lawsuits against prison staff. Doc. Ent. 1. Plaintiff is currently housed at Baraga Maximum

Correctional Facility. On September 12, 2008, the Court granted Plaintiff in forma pauperis

status. Doc. Ent. 7.

On January 8, 2009, Defendants filed a motion to revoke Plaintiff’s in forma pauperis

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status under the “three strikes” rule of the Prison Litigation Reform Act. Doc. Ent. 21 (hereafter

“Def.’s Mot.”). Defendants argued that because Plaintiff has filed at least three lawsuits that

were dismissed on the grounds that they were frivolous, malicious, or failed to state a claim upon

which relief may be granted, Plaintiff is barred from proceeding in forma pauperis.

On January 20, 2009, Plaintiff filed a response to Defendants’ motion in which he did not

contest that at least three of his prior lawsuits were dismissed as “strikes” under the PLRA, but

argued that he should be excused from the “three strikes” rule because he is in imminent danger

of serious bodily harm. Doc. Ent. 37 (hereafter “Pl.’s Resp.”).

On February 4, 2009, Plaintiff filed a supplemental response. Doc. Ent. 42 (hereafter

“Pl.’s Supp. Resp.”). On February 13, 2009, Defendants filed a reply to Plaintiff’s response.

Doc. Ent. 43 (hereafter “Def.’s Reply”).

On January 8, 2009, Defendants moved for an extension of time to respond to the initial

complaint until the Court addresses Defendants’ motion to revoke Plaintiff’s in forma pauperis

status. Doc. Ent. 44. Plaintiff responded to this motion on February 23, 2009. Doc. Ent. 45. This

court granted Defendants’ motion for an extension of time on March 23, 2009. Doc. Ent. 48.

On April 6, 2009, Defendants filed a supplemental brief in support of their motion to

revoke Plaintiff’s in forma pauperis status. Doc. Ent. 50 (hereafter “Def.’s Supp. Br.”).

Defendants argue that the allegations in Plaintiff's complaint do not warrant application of the

imminent danger exception. 

B. Discussion

The 1996 Prison Litigation Reform Act (“PLRA”), enacted in 1996, limits a prisoner’s

ability to proceed in forma pauperis. See 28 U.S.C. § 1915. The in forma pauperis privilege

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allows indigent litigants to disregard and delay filing fees and court costs, but the indigent

litigant may forfeit the privilege by abusing it. Id. 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). The PLRA includes a number of provisions that impose economic disincentives

on prison litigants, encouraging them to “stop and think” before filing a complaint; among these

provisions is the requirement that litigants proceeding in forma pauperis make partial fee

payments over time. Id. The constitutionality of the fee requirements of the PLRA has been

upheld by the Sixth Circuit. Id. at 1288.

Also among the “stop and think” provisions of the PLRA is a provision preventing a

prisoner from proceeding in forma pauperis where the prisoner repeatedly files meritless

lawsuits. This provision is known as the “three strikes” rule.

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 on which relief

may be granted, unless the prisoner is under imminent danger of serious physical

injury.

28 U.S.C. § 1915(g). The Sixth Circuit has upheld the constitutionality of the “three-strikes” rule

of the PLRA 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, 604-6 (6th Cir. 1998); accord Rodriguez v. Cook, 169 F.3d 1176, 1178-

82 (9th Cir. 1999); Rivera v. Allin, 144 F.3d 719, 723-6 (11th Cir. 1998); Carson v. Johnson, 112

F.3d 818, 821-2 (5th Cir. 1997). 

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The only exception is for a prisoner who is “under imminent danger of serious physical

injury.” 28 U.S.C. § 1915(g). The Sixth Circuit explained the “imminent danger” exception in

Rittner v. Kinder, 290 F. App’x 796, 797-8 (6thCir. 2008) (finding that plaintiff-appellant’s

allegations either do not constitute threats of physical injury, are described with insufficient facts

and detail, or are irrational or wholly incredible).

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)).

Id.

Allegations in a pro se complaint are held to less stringent standards than formal

pleadings drafted by lawyers. Haines v. Kerner, 404 U.S. 519, 521 (1972). However, a court may

still find that a pro se litigant’s pleadings are defective where they are conclusory, irrational, and

fail to accompany allegations with sufficient facts and detail. See Echols v. Voisine, 506 F.Supp.

15, 18 (E.D. Mich.1981), quoting Shakespeare v. Wilson, 40 F.R.D. 500, 503 (S.D. Cal. 1966)

(pro se litigant’s “whole pleading is a mixture of conclusions of law, evidentiary statements,

irrelevant pejoratives, conjecture and random remarks which defy rational understanding and

comprehension”).

For the reasons set forth below, I conclude that (1) Plaintiff has filed more than three

lawsuits that were dismissed on the grounds that they were frivolous, malicious, or failed to state

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a claim upon which relief may be granted; and (2) the allegations in Plaintiff’s complaint do not

warrant application of the imminent danger exception in 28 U.S.C. § 1915(g).

1. Plaintiff has filed more than three lawsuits that were dismissed on the grounds

that they were frivolous, malicious, or failed to state a claim upon which relief

may be granted.

Plaintiff has a lengthy history of unsubstantiated and vexatious litigation in the federal

courts. At least five of Plaintiff’s numerous prior lawsuits have been dismissed as frivolous or

for failure to state a claim. See Daniel v. Paionte, et al., 2:08-cv-13999 (E.D. Mich. Oct. 7,

2008); Daniel v. Hofbauer, et al., 2:08-cv-118 (W.D. Mich. Sept. 26, 2008); Daniel v. Hackel, et

al., 2:08-cv-14000 (E.D. Mich. Sept. 25, 2008); Daniel v. Granholm, 2:08-cv-10999 (E.D. Mich.

Apr. 11, 2008); Daniel v. Caruso, et al., 2:08-cv-11000 (E.D. Mich. Apr. 10, 2008).

Plaintiff has had his in forma pauperis status revoked in at least three other cases as a

result of having “three strikes.” Daniel v. Bell, et al, 1:08-cv-829 (W.D. Mich. Jan. 8, 2009);

Daniel v. MDOC, et al, 2:08-cv-160 (W.D. Mich. Oct. 22, 2008); Daniel v. McQuiggin, 2:08-cv244 (W.D. Mich. Dec, 15, 2008). 

Because Plaintiff has accumulated more than three “strikes,” he is subject to revocation

of his in forma pauperis status under the PLRA. 

2. The allegations in Plaintiff’s complaint do not warrant application of the

imminent danger exception.

Plaintiff alleges that he is in imminent danger of serious harm. See, e.g., Doc. Ent. 45 at 2

( “My life is in imminate (sic) danger”); Id. at 4 (“[M]y life is in danger ... the imminate (sic)

danger is real”). In particular, Plaintiff alleges a number of grave abuses by prison staff that

portend serious injury. For example, the following sentence appears in Plaintiff’s response to this

motion.

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Indeed, Plaintiff’s current allegations duplicate allegations Plaintiff made in a complaint

in an action before this Court that was dismissed as frivolous and for failure to state a claim in

April of last year. See Order of Dismissal at 1-3, Daniel v. Caruso, et al., 2:08-cv-11000 (E.D.

Mich. Apr. 10, 2008).

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Finally, trying to (1) murder prose Plaintiff, hang him in a “stage suicide” failure, (2)

placing razor blades, staples, highly toxic chemicals in my prison food, (3) dousing

me with the chemicals on my person, disfigured for life, (4) not feeding prose

Plaintiff for over (44) days, (5) falsifying major prison misconduct tickets, (6)

stealing and destroy prose’s legal on direct review repeatedly as of 1/15/2009

impeded access to the courts, and (7) taping black apes, monkeys, coones to

Plaintiff’s cell prison door repeatedly and burning the face of the K.K.K. on a shower

towel, and (8) closeing my spinal cord in the cell door laughing aloud over the prison

inter com system is “intent crimes” (sic). 

Pl’s Resp. at 7-8. Plaintiff also alleges that his access to the courts is being impeded in numerous

ways. See, e.g., id. at 8. 

The Court should not take lightly a prisoner’s claim that he faces imminent danger of

serious bodily harm from prison staff. A prisoner is entitled to protection from abuse such as

Plaintiff alleges by the Constitution. However, for the reasons set forth below, Plaintiff’s

allegations do not warrant application of the exception in 28 U.S.C. § 1915(g). 

First, it appears that any danger is not imminent. Plaintiff is describing abuse that

allegedly occurred some two and a half years before the complaint in this case was filed, and

while Plaintiff was detained at a different facility then the one at which he is currently housed.1

These allegations concern abuse at St. Louis Correctional Facility, while Plaintiff is currently

housed at Baraga Maximum Correctional Facility. A signed statement from fellow inmate

Michael A. Latiker, submitted by Plaintiff in his response to this motion, confirms that the

allegations concern St. Louis Correctional Facility and not Baraga. See Pl’s Resp., Ex. Z. To

avoid the application of 28 U.S.C. § 1915(g), a prisoner must establish that at the time of filing

his complaint, he was in imminent danger of serious physical injury. See Rittner, 290 F. App’x at

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797-8 (plaintiff-appellant’s allegations of prior abuse do not warrant exception); Abdul-Akbar,

239 F.3d at 311. Plaintiff has not alleged danger that is imminent, so the application of the

exception is not warranted.

Second, even if Plaintiff’s allegations could establish that he is in imminent danger,

Plaintiff has not alleged facts with sufficient particularity regarding those allegations. See

Rittner, 290 F. App’x at 797-8 (imminent danger exception not available where threatened harm

“described with insufficient facts and detail”). Even though Plaintiff is entitled to a liberal

construction of his pleadings in light of the fact that he is proceeding pro se, he must still meet

certain minimum standards. See Echols v. Voisine, 506 F.Supp. at 18. Plaintiff’s pleadings on the

question of the imminent danger exception, while prolix, are not inclusive of any particulars

regarding the abuses he describes; few names, dates, places, injuries, or descriptions of

circumstances accompany his many allegations. Because Plaintiff has not alleged sufficient facts

and detail, the application of the exception under 28 U.S.C. § 1915(g) is not warranted.

Third, Plaintiff’s allegations of imminent danger only surfaced in this case four and a half

months after the initial complaint was filed, or after it became clear that Plaintiff would lose his

in forma pauperis status unless he satisfied the exception in 28 U.S.C. § 1915(g). Given the

gravity and importance of the allegation that serious bodily harm is imminent, one would have

expected to find such an allegation prominently in the initial complaint and not in a response to a

motion to revoke Plaintiff’s in forma pauperis status. In other words, the circumstances in which

Plaintiff’s allegations of imminent serious harm arose renders them “wholly incredible.” See

Rittner, 290 F. App’x at 797-8.

Finally, although the allegations of imminent harm are facially serious, these allegations

must be considered in light of Plaintiff’s history of vexatious and unsubstantiated litigation.

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Given Plaintiff’s history of vexatious and burdensome litigation, and in particular his

abuse of the in forma pauperis privilege, the Court may conclude that sanctions are appropriate.

Sanctions may include dismissal without prejudice, an injunction prohibiting Plaintiff from

seeking in forma pauperis status in the United States District Court for the Eastern District of

Michigan without prior leave of the Court, and an order certifying that any appeal taken by

Plaintiff would not be done in good faith. See Demos v. United States, 2:08-cv-13965, 2008 US

Dist LEXIS 72728, at *7-8 (E.D. Mich. Sept. 24, 2008). 

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Plaintiff has, by establishing a reputation for duplicity in the federal courts, diminished the faith

the Court can place in his allegations, however serious. See Johnson v. Edlow, 37 F.Supp.2d 775,

776 (E.D. Va. 1999) (determining whether action is malicious, court “must look not only to the

complaint before it, but also the plaintiff’s prior litigious conduct”); see also Aesop, The

Shepherd’s Boy and Wolf, in THREE HUNDRED AESOP'S FABLES 38, 38 (George Fyler Townsend

trans., Routledge 1871) (“There is no believing a liar, even when he speaks the truth”).

Accordingly, this Court should conclude Plaintiff's allegations do not warrant application

of the exception in 28 U.S.C. § 1915(g). 

C. Conclusion

Because Plaintiff has filed more than three lawsuits that are considered “strikes” within

the meaning of 28 U.S.C. § 1915(g), and the allegations in Plaintiff's complaint do not warrant

application of the imminent danger exception, the PLRA prohibits Plaintiff from proceeding in

forma pauperis in this action. Accordingly, I recommend that Plaintiff be given thirty days to

pay the entire civil action filing fee, which is $350.00. If Plaintiff fails to pay the filing fee

within the thirty-day period, his case should be dismissed without prejudice, but he will continue

to be responsible for payment of the $350.00 filing fee.2 See In re Alea, 286 F.3d 380-1 (6th Cir.

2002).

III. NOTICE TO PARTIES REGARDING OBJECTIONS:

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The parties to this action may object to and seek review of this Report and

Recommendation, but are required to act within ten (10) days of service of a copy hereof as

provided for in 28 U.S.C. § 636(b)(1) and E.D. Mich. LR 72.1(d)(2). Failure to file specific

objections constitutes a waiver of any further right of appeal. See Thomas v. Arn, 474 U.S. 140

(1985); Howard v. Secretary of Health & Human Servs., 932 F.2d 505 (6th Cir. 1991); United

States v. Walters, 638 F.2d 947 (6th Cir. 1981). Filing of objections which raise some issues but

fail to raise others with specificity, will not preserve all the objections a party might have to this

Report and Recommendation. See Willis v. Sullivan, 931 F.2d 390, 401 (6th Cir. 1991). Smith v.

Detroit Federation of Teachers Local 231, 829 F.2d 1370, 1373 (6th Cir. 1987). Pursuant to

E.D. Mich. LR 72.1(d)(2), a copy of any objections is to be served upon this Magistrate Judge.

Within ten (10) days of service of any objecting party’s timely filed objections, the

opposing party may file a response. The response shall be not more than five (5) pages in length

unless by motion and order such page limit is extended by the Court. The response shall address

specifically, and in the same order raised, each issue contained within the objections.

s/Paul J. Komives 

PAUL J. KOMIVES

UNITED STATES MAGISTRATE JUDGE

Dated: June 9, 2009

The undersigned certifies that a copy of the foregoing

order was served on the attorneys of record by

electronic means or U.S. Mail to Allen Daniel at Baraga

Correctional on June 9, 2009.

s/Eddrey Butts 

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