UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

JOHN RAWLS,

Plaintiff,

v.

MCQUEEN, 

Defendants.

/

Case Number: 2:09-CV-12394

HON. GEORGE CARAM STEEH

ORDER DENYING LEAVE TO PROCEED IN FORMA PAUPERIS

AND SUMMARILY DISMISSING COMPLAINT

Plaintiff, John Rawls, currently confined at the Baraga Maximum Correctional Facility in

Baraga, Michigan, has filed a pro se civil rights complaint pursuant to 42 U.S.C. § 1983. 

Plaintiff has requested that he be permitted to proceed in forma pauperis in this case. See 28

U.S.C. § 1915(a)(1) (1996). For the reasons stated below, the Court denies Plaintiff leave to

proceed in forma pauperis and dismisses the complaint without prejudice pursuant to 28 U.S.C.

§ 1915(g).

Plaintiff’s claims arise from an incident occurring when he was incarcerated at the St.

Louis Correctional Facility (SLCF) in St. Louis, Michigan. Plaintiff names a single defendant, a

corrections officer employed at SLCF. Plaintiff alleges that, in 2006, defendant McQueen

improperly issued a misconduct report for Plaintiff, resulting in Plaintiff’s being placed in

administrative segregation. 

Under the Prison Litigation Reform Act (“PLRA”), Pub. L. No. 104-134, 110 Stat. 1321

(1996), a prisoner is prevented from proceeding in forma pauperis in a civil action under certain

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circumstances. The statute states, in relevant part:

In no event shall a prisoner bring a civil action or appeal a judgment in a civil

action or proceeding under this section, 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.

42 U.S.C. § 1915(g). 

In short, this “three strikes” provision allows the Court to dismiss a prisoner case where

the prisoner seeks to proceed in forma pauperis if, on three or more previous occasions, a federal

court has dismissed the incarcerated plaintiff’s action because it was frivolous or malicious or

failed to state a claim for which relief may be granted. 28 U.S.C. § 1915(g) (1996); Dupree v.

Palmer, 284 F.3d 1234, 1236 (11th Cir. 2002) (holding that “the proper procedure is for the

district court to dismiss the complaint without prejudice when it denies the prisoner leave to

proceed in forma pauperis pursuant to the provisions of § 1915(g)” because the prisoner “must

pay the filing fee at the time he initiates the suit.”). Plaintiff has filed more than three prior civil

rights complaints which have been dismissed as frivolous or for failure to state a claim upon

which relief may be granted. See Rawls v. Higbie, No. 1:99-cv-00806 (W.D. Mich. Jan. 10,

2000); Rawls v. Kruger, No. 4:95-cv-00103 (W.D. Mich. July 5, 1995); Rawls v. Williams, No.

4:94-cv-00131 (W.D. Mich. Aug. 26, 1994); Rawls v. Williams, No. 1:93-cv-00924 (W.D. Mich.

May 4, 1994); Rawls v. Greer, No. 4:93-cv-00186 (W.D. Mich. Jan. 28, 1994); Rawls v.

Williams, No. 4:93-cv-00188 (W.D. Mich. Jan. 10, 1994); Rawls v. Hogle, No. 4:93-cv-00187

(W.D. Mich. Jan. 10, 1994). 

A plaintiff may maintain a civil action despite having had three or more civil actions

dismissed as frivolous if the prisoner is “under imminent danger of serious physical injury.” 28

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U.S.C. § 1915(g). To establish that his complaint falls within the statutory exception to the three

strikes rule, a prisoner must allege that he is under imminent danger at the time that he seeks to

file his complaint and proceed in forma pauperis. Malik v. McGinnis, 293 F.3d 559, 562 (2d Cir.

2002) (holding that imminent danger exception requires that the danger exist at time complaint is

filed) Ashley v. Dilworth, 147 F.3d 715, 717 (8th Cir. 1998) (plaintiff sufficiently alleged

imminent danger of serious physical injury where he claimed that he was placed near inmates on

his enemy list and subject to ongoing danger); Banos v. O’Guin, 144 F.3d 883, 885 (5th Cir.

1998) (past body cavity searches failed to establish imminent danger of serious physical injury);

Luedtke v. Bertrand, 32 F. Supp. 2d 1074, 1077 (E.D. Wis. 1999) (allegation of past physical

injury is insufficient to meet statutory exception). 

In this case, the occurrence giving rise to Plaintiff’s complaint, issuance of an allegedly

improper misconduct report, does not present the danger of physical harm. Moreover, the

misconduct report was issued in February 2006. Thus, Plaintiff cannot show that he is in

imminent danger related to an incident occurring over three years ago. 

Accordingly, IT IS ORDERED that Plaintiff’s request to proceed in forma pauperis is

DENIED. 

IT IS FURTHER ORDERED that Plaintiff’s complaint is DISMISSED WITHOUT

PREJUDICE pursuant to 28 U.S.C. § 1915(g). Should Plaintiff wish to pursue the allegations

contained in his complaint, he must submit payment of the $350.00 filing fee within 30 days. 

Upon receipt of the filing fee, the Court will re-open the case and review the complaint to

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determine whether it should be served or should be summarily dismissed under 28 U.S.C. §

1915(e)(2). 

Dated: July 9, 2009

S/George Caram Steeh 

GEORGE CARAM STEEH

UNITED STATES DISTRICT JUDGE

CERTIFICATE OF SERVICE

Copies of this Order were served upon attorneys of record on

July 9, 2009, by electronic and/or ordinary mail.

S/Josephine Chaffee

Deputy Clerk

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