White v. Mosely et al

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
NORTHERN DIVISION
MARK WHITE,
Case No. 1:25-cv-12570
Plaintiff, 	Hon. Thomas L. Ludington
United States District Judge
v.
MARVIN MOSELY, et al.,
Defendants,
_____________________________/
ORDER DENYING PLAINTIFF’S APPLICATION TO PROCEED WITHOUT
PREPAYMENT OF FEES AND COSTS AND SUMMARILY DISMISSING
COMPLAINT
This matter is before the Court on Plaintiff Mark White’s pro se civil rights Complaint
filed under 42 U.S.C. § 1983. Plaintiff is currently an inmate in Michigan, housed at the Thumb
Correctional Facility. His Complaint concerns events that are alleged to have occurred at the
Robert J. Cotton Correctional Facility while Plaintiff was an inmate there. He asserts that MDOC
personnel at the Cotton facility violated his First, Eighth, and Fourteenth Amendment rights by
conspiring and engaging in acts of retaliation in response to his prior lawsuits. But based on
Plaintiff’s Complaint and litigation history, the case must be dismissed without prejudice under
the 28 U.S.C. § 1915(g)’s three-strikes provision.
I.
The Prisoner Litigation Reform Act of 1995 (PLRA) states that “if a prisoner brings a civil
action or files an appeal in forma pauperis, the prisoner shall be required to pay the full amount of
a filing fee.” 28 U.S.C. § 1915(b)(1); see also In Re Prison Litigation Reform Act, 105 F. 3d 1131,
1138 (6th Cir. 1997). The in forma pauperis (IFP) statute, 28 U.S.C. § 1915(a), provides prisoners
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the opportunity to make an initial partial filing fee and pay the remainder in installments. See
Miller v. Campbell, 108 F. Supp. 2d 960, 962 (W.D. Tenn. 2000).
Under the PLRA, a federal court may dismiss a case if, on three or more occasions, a federal
court 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); Thaddeus-X v. Blatter, 175
F. 3d 378, 400 (6th Cir. 1999). The three strikes provision allows IFP status despite three or more
strikes if the plaintiff sufficiently asserts that he is in imminent danger of serious physical injury.
See Clemons v. Young, 240 F. Supp. 2d 639, 641 (E.D. Mich. 2003) (citing 28 U.S.C. § 1915(g)).
II.
On numerous occasions, judges in this district and in the Western District of Michigan have
denied Plaintiff leave to proceed in forma pauperis under 28 U.S.C. § 1915(g). See White v. Strurm,
737 F. Supp. 3d 576 (E.D. Mich. June 12, 2024); White v. Washington, No. 24-10550; 2024 U.S.
Dist. LEXIS 43671 (E.D. Mich. March 12, 2024); White v. Morrison, No. 21-cv-00601, 2022 U.S.
Dist. LEXIS 18990 (W.D. Mich. Feb. 2, 2022); White v. McKee, No. 16-cv-00601, 2016 U.S. Dist.
LEXIS 76347 (W.D. Mich. June 13, 2016); White v. U.S. Dist. Cts. of Mich., No. 13-14428 (E.D.
Mich. Oct. 25, 2013); White v. Heyns, No. 13-12104 (E.D. Mich. May 24, 2013); White v. Saginaw
Cnty. Jail, No. 09-13470 (E.D. Mich. Sept. 14, 2009). Thus, the “three strikes” rule applies. See
Blatter, 175 F. 3d at 400.
Plaintiff asserts, however, that under the new standard announced in Crump v. Blue, 121
F.4th 1108 (6th Cir. 2024), he is no longer a three-striker because only one of his prior actions was
dismissed in its entirety for being frivolous, malicious, or failing to state a claim. ECF No. 2 at
PageID.13-14. Crump held that only cases where all the claims in a complaint—as opposed to
some of the claims—were dismissed on the grounds listed in § 1915(g) count as strikes. 121 F.4th
at 1111. White asserts that all but one of his prior cases contained at least one claim that was
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dismissed on immunity grounds, a decision not to exercise supplemental jurisdiction, or by way
of summary judgment. ECF No. 2 at PageID.14.
But the fact that a case was dismissed at the summary judgment phase of proceedings does
not automatically mean that it does not count as a strike. “The district court must examine the basis
of a court’s previous grant of summary judgment to determine whether the dismissing court
deemed the action frivolous, malicious, or as failing to state a claim for relief.” Jeter v. Lawless,
No. 19-cv-623, 2020 U.S. Dist. LEXIS 119305, *4 (S.D. Ohio July 7, 2020) (citing Escalera v.
Samaritan Vill., 938 F.3d 380, 383 (2d Cir. 2019); see also Blakely v. Wards, 738 F.3d 607, 610
(4th Cir. 2013) (“The fact that an action was dismissed as frivolous, malicious, or failing to state
a claim, and not the case’s procedural posture at dismissal, determines whether the dismissal
constitutes a strike under Section 1915(g).”)
Despite Plaintiff’s assertions, there are still at least three remaining strikes: (1) White v.
Nichols, No. 94-cv-75266, 1996 U.S. Dist. LEXIS 23717 (E.D. Mich. April 30, 1996), R&R
adopted 1996 U.S. Dist. LEXIS 23718 (E.D. Mich. July 29, 1996); (2) White v. Caruso, No. 08-
80, 2008 U.S. Dist. LEXIS 11105, *2 (W.D. Mich. Feb. 14, 2008); and (3) White v. Caruso, No.
08-10057, 2008 U.S. Dist. LEXIS 124172, *5 (E.D. Mich. March 17, 2008).
Because of those three strikes, Plaintiff is barred from proceeding IFP here absent a claim
that he is in imminent danger of serious physical injury. Clemons, 240 F. Supp. at 641. He makes
allegations regarding his poor health, but they are not sufficiently related to the basis of his
Complaint to satisfy the exception to the three strikes rule. See Vandiver v. Prison Health Svs.,
Inc., 727 F.3d 580, 585 (6th Cir. 2013) (citing Rittner v. Kinder, 290 F. App’x 796, 797 (6th Cir.
2008); Taylor v. First Med. Mgt., 508 F. App’x 488, 492 (6th Cir. 2012)). The current Complaint
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concerns past events that transpired at the Cotton Correctional Facility, and Plaintiff is currently
housed at a different correctional facility.
Thus, Plaintiff’s civil rights Complaint is subject to dismissal under § 1915(g).
III.
Since Plaintiff has had three prior cases dismissed against him for being frivolous,
malicious, or failing to state a claim, § 1915(g) bars him from appealing IFP. See Drummer v.
Luttrell, 75 F. Supp. 2d 796, 805-806 (W.D. Tenn. 1999). This Court therefore certifies that any
appeal from this dismissal would not be taken in good faith.
IV.
Accordingly, it is ORDERED that Plaintiff is DENIED in forma pauperis status, and the
Complaint, ECF No. 1, is DISMISSED WITHOUT PREJUDICE under 28 U.S.C. § 1915(g).
This is a final order and closes this case.
Dated: November 4, 2025 	s/Thomas L. Ludington
THOMAS L. LUDINGTON
United States District Judge
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