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UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

L. T. TUCKER, JR.,

Plaintiff,

CASE NO. 09-CV-13247

v.

HONORABLE AVERN COHN

NICK LUDWICK, et al.,

Defendants.

 /

OPINION AND ORDER DENYING APPLICATION TO PROCEED WITHOUT

PREPAYMENT OF FEES AND COSTS AND DISMISSING COMPLAINT

I. INTRODUCTION

Plaintiff L. T. Tucker, Jr. (“Plaintiff”), a state prisoner confined at the St. Louis

Correctional Facility in St. Louis, Michigan, has filed a pro se civil rights complaint pursuant

to 42 U.S.C. § 1983, as well as an application to proceed without prepayment of fees and

costs so that he may proceed without prepayment of the $350.00 filing fee for this action.

See 28 U.S.C. § 1915(a)(1). Plaintiff names the warden and the prison chaplain as

defendants in this action. Plaintiff alleges that the defendants have refused to allow him

to participate in the kosher meal program and have refused to allow him to establish a new

religious group service. Plaintiff alleges a violation of his constitutional rights and seeks

injunctive relief and monetary damages. For the reasons stated herein, the Court denies

Plaintiff’s application to without prepayment of fees and costs and dismisses his complaint

without prejudice pursuant to 28 U.S.C. § 1915(g).

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II. DISCUSSION

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

1321 (1996), a prisoner may be precluded from proceeding without prepayment of the filing

fee in a civil action under certain circumstances. The statute states, in relevant part, as

follows:

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.

28 U.S.C. § 1915(g). In short, the “three strikes” provision requires the Court to dismiss a

civil case where the prisoner seeks to proceed without prepayment of the filing fee if, on

three or more previous occasions, a federal court has dismissed the prisoner’s action

because it was frivolous or malicious or failed to state a claim upon which relief may be

granted. Id.; see also 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)”).

Plaintiff is a prolific litigator in federal court. The Court’s records reveal that Plaintiff

has filed more than three prior civil actions which have been dismissed as frivolous or for

failure to state a claim upon which relief may be granted. See, e.g., Tucker v. Chapin, et

al., No. 4:94-cv-100 (W.D. Mich. June 30, 1994); Tucker v. Kinney, et al., No. 4:94-cv-101

(W.D. Mich. June 30, 1994); Tucker v. Hembree, et al., No. 4:94-cv-105 (W.D. Mich. July

15, 1994); Percival, et al.v. Williams, et al., No. 1:00-cv-849 (W.D. Mich. Nov. 29, 2000).

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Although three of the dismissals were entered before the PLRA’s enactment in 1996, such

dismissals nevertheless count as strikes. See Wilson v. Yaklich, 148 F.3d 596, 604 (6th

Cir.1998). In addition, Plaintiff has previously been denied leave to proceed in forma

pauperis for having three strikes. See, e.g.,Tucker v. Smith, et. al., No. 06-CV-94, 2006

WL 1155479 (W.D. Mich. April 26, 2006); app. dism. No. 06-2408 (6th Cir. Dec. 14, 2006);

Tucker v. Bergh, et. al., No. 06-CV-73, 2006 WL 1008985 (W.D. Mich. April 14, 2006); app.

dism. No. 06-2405 (6th Cir. Dec. 14, 2006).

Consequently, Plaintiff is a “three-striker” who cannot proceed without prepayment

of the filing fee in this case unless he can demonstrate that he is “under imminent danger

of serious physical injury.” 28 U.S.C. § 1915(g). To fall within this statutory exception to

the three strikes rule, a prisoner must allege that the threat or prison condition is ‘real and

proximate’ and that the danger of serious physical injury must exist at the time the

complaint is filed. See Rittner v. Kinder, 290 Fed. Appx. 796, 797-98 (6th Cir. 2008) (citing

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)). A prisoner’s assertion that he faced danger in the past

is insufficient to invoke the exception. Id.

The events giving rise to Plaintiff’s complaint, i.e., the alleged failure to provide him

with a kosher diet and the refusal to allow him to establish a new religious group service,

do not pose any threat of imminent danger of serious physical injury. While Plaintiff asserts

that corrections officers have previously assaulted him by pushing a thumb in his eye and

neck, by using handcuffs to pull his arm out of food slot, and by twice taking his food trays,

such allegations of past improper conduct are insufficient to establish that he is under

imminent danger of serious physical injury. See Rittner, supra. Furthermore, although

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Plaintiff claims that corrections officers have threatened to assault or kill him if he pursues

his grievances and lawsuits, verbal threats alone are insufficient to establish “imminent

danger” under 28 U.S.C.§ 1915(g). See Polanco v. Hopkins, 510 F.3d 152, 155 (2d Cir.

2007); see also Tucker, 2006 WL 1155479, at *2. Plaintiff has not alleged facts which show

that he is under immediate or specific danger of future serious physical injury. See Davis

v. Cook, 4 Fed. Appx. 261, 262 (6th Cir. 2001). It appears that Plaintiff’s claims of

imminent danger have been included in his complaint solely to avoid application of the

three strikes rule. To be sure, the Court’s records reveal that Plaintiff has filed numerous

lawsuits in this Court and in the United States District Court for the Western District of

Michigan despite the alleged threats. Plaintiff has failed to show that he falls within the

exception to the three strikes rule.

III. CONCLUSION

Based upon the foregoing, the Court concludes that Plaintiff has filed more than

three previous lawsuits which have been dismissed as frivolous or for failure to state a

claim upon which relief may be granted and that he has failed to establish that he is under

imminent danger of serious physical injury so as to fall within the exception to the three

strikes provision of 28 U.S.C. § 1915(g). Accordingly, Plaintiff’s application to proceed

without prepayment of fees or costs is DENIED and the complaint is DISMISSED pursuant

to 28 U.S.C. § 1915(g). This dismissal is without prejudice to the filing of a new complaint

with payment of the $350.00 filing fee. The Court notes that any such complaint will be

reviewed to determine whether it should be served upon the defendants or summarily

dismissed pursuant to 28 U.S.C. § 1915A(b), which requires the Court to dismiss a

complaint brought against governmental entities, officers, and employees if the complaint

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is “frivolous, malicious, or fails to state a claim upon which relief may be granted.”

Lastly, the Court concludes that it has properly applied the “three strikes” provision

of 28 U.S.C. § 1915(g) such that an appeal from this order would be frivolous and,

therefore, cannot be taken in good faith. See 28 U.S.C. § 1915(a)(3); McGore v.

Wrigglesworth, 114 F.3d 601, 610-11 (6th Cir. 1997).

SO ORDERED.

 s/ Avern Cohn 

AVERN COHN

UNITED STATES DISTRICT JUDGE

Dated: August 26, 2009

I hereby certify that a copy of the foregoing document was mailed to L.T. Tucker 

132271, St. Louis Correctional Facility, 8585 N. Croswell Road, St. Louis, MI 48880 on this

date, August 26, 2009, by electronic and/or ordinary mail.

 s/ Julie Owens 

Case Manager, (313) 234-5160

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