Preston #235170 v. Wilkins et al

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
NORTHERN DIVISION
______
HARVEY PRESTON,
Plaintiff,
v.
TERRY WILKINS et al.,
Defendants.
____________________________/
Case No. 2:25-cv-272
Honorable Hala Y. Jarbou
OPINION
This is a civil rights action brought by a state prisoner under 42 U.S.C. § 1983. Plaintiff
has filed a motion for leave to proceed in forma pauperis. (ECF No. 2.) However, Plaintiff is barred
from proceeding in forma pauperis under 28 U.S.C. § 1915(g). Where a plaintiff is ineligible for
in forma pauperis status under 28 U.S.C. § 1915, “he must make full payment of the filing fee
before his action may proceed.” In re Alea, 286 F.3d 378, 380 (6th Cir. 2002).
Plaintiff has filed at least three lawsuits that were dismissed as frivolous, malicious, or for
failure to state a claim, and Plaintiff has not demonstrated that he is in imminent danger of serious
physical injury to allow him to proceed in forma pauperis in this action. Further, Plaintiff has not
paid the $405.00 civil action filing fees applicable to those not permitted to proceed in forma
pauperis.1 Accordingly, for the reasons set forth below, this action will be dismissed without
prejudice pursuant to 28 U.S.C. § 1915(g).
1 The filing fee for a civil action is $350.00. 28 U.S.C. § 1914(a). The Clerk is also directed to
collect a miscellaneous administrative fee of $55.00. 28 U.S.C. § 1914(b); https://www.uscourts.
gov/services-forms/fees/district-court-miscellaneous-fee-schedule. However, the miscellaneous
administrative fee “does not apply to applications for a writ of habeas corpus or to persons granted
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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 created 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.
28 U.S.C. § 1915(g). The statutory restriction “[i]n no event,” found in § 1915(g), is express and
unequivocal. The statute does allow an exception for a prisoner who is “under imminent danger of
serious physical injury.” The Sixth Circuit has upheld the constitutionality of the three-strikes rule
in forma pauperis status under 28 U.S.C. § 1915.” https://www.uscourts.gov/services-forms/fees/
district-court-miscellaneous-fee-schedule.
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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, 604–06 (6th Cir. 1998).
In at least three of Plaintiff’s lawsuits, the Court entered dismissals on the grounds that the
cases were frivolous, malicious, and/or failed to state a claim. See Preston v. White, No. 2:03-cv-
249 (W.D. Mich. Jan. 7, 2004); Preston v. Duney, No. 2:03-cv-253 (W.D. Mich. Jan. 6, 2004);
Preston v. Burch, No. 1:03-cv-581 (W.D. Mich. Dec. 5, 2003). In addition, the Court previously
has denied Plaintiff leave to proceed in forma pauperis under the three-strikes rule. See Preston v.
Bonn, No. 1:25-cv-389 (W.D. Mich. Aug. 28, 2025); Preston v. Bonn et al., No. 1:25-cv-29 (W.D.
Mich. Mar. 7, 2025); Preston v. Hoffman et al., No. 2:24-cv-179 (W.D. Mich. Nov. 22, 2024);
Preston v. Bonn et al., No. 1:24-cv-588 (W.D. Mich. July 2, 2024); Preston v. Davids, No. 1:24-
cv-416 (W.D. Mich. May 7, 2024); Preston v. Rewerts et al., No. 1:24-cv-304 (W.D. Mich. Apr.
25, 2024); Preston v. Russell, No. 1:21-cv-312 (W.D. Mich. Apr. 29, 2021); Preston v. Davids,
No. 1:18-cv-803 (W.D. Mich. Aug. 8, 2018); Preston v. Smith et al., No. 1:18-cv-84 (W.D. Mich.
Feb. 2, 2018); Preston v. U.P. Health Sys. et al., No. 2:16-cv-201 (W.D. Mich. Sept. 30, 2016).
Moreover, Plaintiff’s allegations do not fall within the “imminent danger” exception to the
three-strikes rule. 28 U.S.C. § 1915(g). 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.
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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.”).
Vandiver v. Prison Health Services, Inc., 727 F.3d 580, 585 (6th Cir. 2013). A prisoner’s claim of
imminent danger is subject to the same notice pleading requirement as that which applies to
prisoner complaints. Id. Consequently, a prisoner must allege facts in the complaint from which
the Court could reasonably conclude that the prisoner was under an existing danger at the time he
filed his complaint, but the prisoner need not affirmatively prove those allegations. Id.
Plaintiff is presently incarcerated with the Michigan Department of Corrections (MDOC)
at the Baraga Correctional Facility (AMF) in Baraga, Baraga County, Michigan. The events about
which he complains occurred at that facility and the Ionia Correctional Facility (ICF) in Ionia,
Ionia County, Michigan. Plaintiff sues the following AMF staff: Warden Terry Wilkins, Inspector
David Pynnonen, Resident Unit Manager Tim Wilson, Prison Counselor Unknown Kalwalski,
Deputy Warden Chester Dums, Assistant Deputy Warden Marsha Nurkala, and Assistant Deputy
Warden Shawn Minerick. Plaintiff also sues the following ICF staff: Warden Dale Bonn, Assistant
Deputy Warden Janna Garcia, Assistant Deputy Warden Dennis Cassel, Assistant Deputy Warden
John Williams, Resident Unit Manager Dave Reed, Prison Counselor Unknown L. Dunston,
LMSW David Maranka, Correctional Officer Useff Perkins, and Correctional Officer Bernard
Scott. (Compl., ECF No. 1, PageID.2–5.)
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Plaintiff alleges that “a hit was placed on [Plaintiff’s] life” while Plaintiff was incarcerated
at ICF. (Compl., ECF No. 1, PageID.7.) Plaintiff requested protective custody, but his requests
were denied. (Id.)
Plaintiff alleges that “the hit” then followed Plaintiff to AMF. (Id.) He claims that his food
and medication have been “poisoned” and that he has no drinking water. (Id.) Plaintiff claims that
he asked Defendants Wilkins, Dums, Nurkala, Minerick, Pynnonen, Wilson, and Kalwalski for
protective custody but that his requests were again denied. (Id.)
The Court concludes that Plaintiff has failed to allege any facts which support a finding
that he was in imminent danger at the time he filed this lawsuit. First, as to Plaintiff’s claims against
the ICF Defendants, because Plaintiff was no longer confined to ICF at the time that he filed his
complaint, Plaintiff cannot demonstrate that he faced an imminent danger of serious physical
injury at the time that he filed his complaint.
Second, Plaintiff’s claim that a “hit” against him at ICF followed him to AMF fails to
demonstrate that Plaintiff is in imminent danger of serious physical injury. With respect to this
claimed “hit,” Plaintiff’s allegations “‘must be sufficient to allow a court to draw reasonable
inferences’ that the threat is ‘real and proximate’ and that the ‘danger of serious physical injury’
exists.” Jackson v. Bolton, No. 23-1701, 2024 WL 314530 at *2 (6th Cir. Jan. 24, 2024) (quoting
Vandiver, 727 F.3d at 585). In Jackson, the Sixth Circuit concluded that Jackson had sufficiently
alleged that a threat to kill him if he pursued lawsuits set forth imminent danger of serious physical
harm because Jackson had alleged that he found a razor blade in a biscuit, and also because his
“allegations were specific as to the person who made the threat, the content of the threat, and the
date, time, and place that the threat occurred.” Id. Here, Plaintiff alleges only vaguely that he is “at
risk in general population due to security threat groups and affiliates.” (Compl., ECF No. 1,
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PageID.10.) He does not provide the Court with any details concerning the nature of the alleged
hit. In short, Plaintiff asks the Court to fabricate plausibility to his claim from mere ambiguity; but
ambiguity does not support an inference of real and proximate danger of serious physical injury.
Finally, Plaintiff’s assertions that his food and medication have been poisoned fail to
demonstrate that he is in imminent danger of serious physical injury. Plaintiff has routinely made
similar allegations about officials at different prisons, beginning as early as 2003, which this Court
held were inadequate to state a claim because they were conclusory. See Preston v. Duney, No.
2:03-cv-253 (W.D. Mich. Jan. 6, 2004) (dismissing for failure to state a claim Plaintiff’s complaint
that the defendant must have tampered with his meal at the Marquette Branch Prison because he
felt an immediate throbbing on both sides of his neck after the defendant gave him his food tray);
Preston v. Burch, No. 1:03-cv-581 (W.D. Mich.) (attaching grievances alleging Oaks Correctional
Facility personnel poisoned his food on numerous occasions); see also Preston v. U.P. Health Sys.
et al., No. 2:16-cv-201 (W.D. Mich.) (alleging that health services ignored his conclusory
complaints that personnel at the Marquette Branch Prison poisoned his food on many occasions,
causing him head and chest pain). Likewise, this Court has previously denied leave to proceed in
forma pauperis under the imminent-danger exception based on nearly identical, wholly conclusory
allegations that different defendants at ICF poisoned his food in December 2017, again in 2024,
and again in early 2025. See Preston v. Bonn et al., No. 1:25-cv-29; Preston v. Hoffman et al., No.
1:24-cv-588; Preston v. Davids, No. 1:24-cv-416; Preston v. Rewerts et al., No. 1:24-cv-304;
Preston v. Smith et al., No. 1:18-cv-84.
In this case, also, Plaintiff states the conclusion that he has been poisoned. Nonetheless,
Plaintiff alleges no facts that support the inference that any Defendant has tampered with his food.
Moreover, Plaintiff makes no factual allegations to support the inferential leap that his “health
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concerns” were caused by the food he ate during the day. Under these circumstances, Plaintiff’s
conclusory allegations fail to contain sufficient facts to demonstrate that he is in imminent danger
of serious physical injury from consuming allegedly poisonous food.
Accordingly, Plaintiff is barred from proceeding in forma pauperis under § 1915(g).
Plaintiff also has not paid the $405.00 civil action filing fees applicable to those not permitted to
proceed in forma pauperis. The Court will therefore dismiss this action without prejudice. See
Dupree v. Palmer, 284 F.3d 1234, 1236 (11th Cir. 2002) (“[T]he 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 three strikes provision of § 1915(g).”). Plaintiff is free to refile his
complaint as a new action in this Court if he submits the filing fees at the time that he initiates the
new action.
Conclusion
For the foregoing reasons, the Court will deny Plaintiff leave to proceed in forma pauperis.
The Court will dismiss this action without prejudice to Plaintiff’s right to refile his complaint as a
new action in this Court with the full civil action filing fees.2
For the same reasons that the Court dismisses the action, the Court discerns no good-faith
basis for an appeal. See 28 U.S.C. § 1915(a)(3); McGore v. Wrigglesworth, 114 F.3d 601, 611 (6th
Cir. 1997). Further, should Plaintiff appeal this decision, he must pay the $605.00 appellate filing
2 Because Plaintiff has the opportunity to refile his complaint as a new action in this Court by
paying the full civil action filing fees at the time of filing the new action, the Court will not assess
the district court filing fees in the present action.
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fee in a lump sum, because he is prohibited from proceeding in forma pauperis on appeal by 28
U.S.C. § 1915(g).
An order and judgment consistent with this opinion will be entered.
Dated: March 16, 2026 	/s/ Hala Y. Jarbou
HALA Y. JARBOU
CHIEF UNITED STATES DISTRICT JUDGE
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