Cardello-Smith #267009 v. Salinas et al

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
NORTHERN DIVISION
______
DERRICK LEE SMITH,
Plaintiff,
v.
UNKNOWN SALINAS et al.,
Defendants.
____________________________/
Case No. 2:25-cv-246
Hon. Hala Y. Jarbou
OPINION
This is a civil rights action brought by a state prisoner under 42 U.S.C. § 1983. Plaintiff
has not paid the filing fee or sought leave to proceed in forma pauperis. 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),
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).
Plaintiff has been an active litigant in the federal courts in Michigan. In more than 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 Smith v. Fager et al., No. 1:24-cv-308 (W.D. Mich.
Aug. 27, 2024); Smith v. Maloney et al., No. 1:23-cv-421 (W.D. Mich. May 16, 2023); Smith v.
Jones et al., No. 1:22-cv-1082 (W.D. Mich. Feb. 17, 2023); Smith v. Otto et al., No. 1:22-cv-1028
(W.D. Mich. Feb. 17, 2023); Smith v. Brock et al., No. 1:22-cv-634 (W.D. Mich. Feb. 21, 2023);
Smith v. Schiebner et al., No. 1:21-cv-878 (W.D. Mich. Jan. 25, 2022); North et al. v. Scanlon et
al., No. 1:21-cv-518 (W.D. Mich. Jul. 13, 2021); Smith v. Washington et al., No. 2:18-cv-10736
(E.D. Mich. Oct. 5, 2018); Smith v. Hall et al., No. 1:18-cv-277 (W.D. Mich. Apr. 3, 2018); Smith
v. Wayne Cnty. Prosecutor’s Office et al., No. 2:09-cv-12287 (E.D. Mich. June 25, 2009). All of
Plaintiff’s dismissals were entered after enactment of the PLRA on April 26, 1996.
In addition, Plaintiff has been denied leave to proceed in forma pauperis under the three-
strikes rule in at least four cases. See Smith v. Ionia Correctional Facility et al., No. 1:25-cv-353
(W.D. Mich. Apr. 29, 2024); Smith v. Washington et al., No. 1:20-cv-1211 (W.D. Mich. Mar. 2,
2021); Smith v. Writeaprisoner.com Inc. et al., No. 1:20-cv-1201 (W.D. Mich. Mar. 5, 2021);
Smith v. Penman et al., No. 1:18-cv-1212 (W.D. Mich. Feb. 13, 2019).
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
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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.
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 Earnest C. Brooks Correctional Facility, (LRF) in Muskegon Heights, Muskegon County,
Michigan. The events about which he complains, however, occurred at the Ionia Correctional
Facility (ICF) in Ionia, Ionia County, Michigan and the Kinross Correctional Facility (KCF) in
Kincheloe, Chippewa County, Michigan. Plaintiff sues ICF Inspector Unknown Salinas, ICF
Deputy Warden Unknown Garcia, Ionia Correctional Facility Staff, Kinross Correctional Facility
Staff, Unknown Parties named as KCF Telephone Restriction Staff Supervisors, the MDOC,
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Unknown Parties named as the Hearings Division of the MDOC, and Unknown Parties named as
MDOC Probable Cause Conference Release Mediators.
Plaintiff alleges that he has been wrongfully placed on telephone restrictions by
Defendants, preventing him from contacting friends and family and the legal counsel retained to
assist him in “probable cause conference[s].” (Compl., ECF No. 1; Brief in Support of Compl.,
ECF No. 2, PageID.3–4.) However, Plaintiff does not allege any facts that would suggest that
Plaintiff was in imminent danger of serious physical injury when he filed this complaint.
Moreover, because Plaintiff’s complaint concerns events that occurred in the past at ICF and KCF,
and because Plaintiff is no longer confined at the facilities where he claims that Defendants are
employed, Plaintiff cannot demonstrate that he faced an imminent danger of serious physical
injury at the time that he filed his complaint.
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.
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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 full appellate filing 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: November 4, 2025 /s/ Hala Y. Jarbou
HALA Y. JARBOU
CHIEF UNITED STATES DISTRICT JUDGE
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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