UNITED STATES DISTRICT COURT WESTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION ______

JASON FLAKES,

Plaintiff, Case No. 1:25-cv-570

v. Honorable Maarten Vermaat

UNKNOWN CAMPBELL et al.,

Defendants. ____________________________/ OPINION

This is a civil rights action brought by a state prisoner under

. Plaintiff consented to proceed in all matters in this action under the jurisdiction of a United States Magistrate Judge. (ECF No. 1, PageID.4.) Plaintiff has filed a motion for leave to proceed in forma pauperis in this matter. (ECF No. 2.) However, Plaintiff is barred from proceeding in forma pauperis under

(g). Where a plaintiff is ineligible for in forma pauperis status under

, “he must make full payment of the filing fee before his action may proceed.” In re Alea,

(6th Cir. 2002). That means payment should precede preliminary review pursuant to 28 U.S.C. § 1915A(b) and 42 U.S.C. § 1997e(c), which the Court is required to conduct prior to the service of the complaint. See In re Prison Litigation Reform Act,

(6th Cir. 1997); McGore v. Wrigglesworth,

, 604–05 (6th Cir. 1997). Service of the complaint on the named defendants is of particular significance in defining a putative defendant’s relationship to the proceedings. “An individual or entity named as a defendant is not obliged to engage in litigation unless notified of the action, and brought under a court’s authority, by formal process.” Murphy Bros. v. Michetti Pipe Stringing, Inc.,

(1999). “Service of process, under longstanding tradition in our system of justice, is fundamental to any procedural imposition on a named defendant.”

. “[O]ne becomes a party officially, and is required to take action in that

capacity, only upon service of a summons or other authority-asserting measure stating the time within which the party served must appear and defend.”

(citations omitted). That is, “[u]nless a named defendant agrees to waive service, the summons continues to function as the sine qua non directing an individual or entity to participate in a civil action or forgo procedural or substantive rights.”

. Therefore, the Prison Litigation Reform Act (PLRA),

Stat. 1321 (1996), by requiring courts to review and even resolve a plaintiff’s claims before service, creates a circumstance where there may only be one party to the proceeding—the plaintiff—at the district court level and on appeal. See, e.g., Conway v. Fayette Cnty. Gov’t,

(6th Cir. 2007) (stating that “[p]ursuant to 28 U.S.C. § 1915A, the district court screened the complaint

and dismissed it without prejudice before service was made upon any of the defendants . . . [such that] . . . only [the plaintiff] [wa]s a party to this appeal”). Here, Plaintiff has consented to a United States Magistrate Judge conducting all proceedings in this case under

(c). That statute provides that “[u]pon the consent of the parties, a full-time United States magistrate judge . . . may conduct any or all proceedings . . . and order the entry of judgment in the case . . . .”

(c). Because the named defendant has not yet been served, the undersigned concludes that the defendant is not presently a party whose consent is required to permit the undersigned to enter an opinion, order, and judgment denying Plaintiff leave to proceed in forma pauperis and dismissing this action without prejudice. See Neals v. Norwood,

(5th Cir. 1995) (“The record does not contain a consent from the defendants[; h]owever, because they had not been served, they were not parties to th[e] action at the time the magistrate entered judgment.”).1 As set forth below, 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.2 Accordingly, this action will be dismissed without prejudice pursuant to

(g). Discussion The Prison Litigation Reform Act (PLRA),

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

1 But see Coleman v. Lab. & Indus. Rev. Comm’n of Wis.,

(7th Cir. 2017) (concluding that, when determining which parties are required to consent to proceed before a United States Magistrate Judge under

(c), “context matters” and the context the United States Supreme Court considered in Murphy Bros. was nothing like the context of a screening dismissal pursuant to

(e)(2) and 1915A(b), and 42 U.S.C. § 1997e(c)); Williams v. King,

, 503–04 (9th Cir. 2017) (relying on Black’s Law Dictionary for the definition of “parties” and not addressing Murphy Bros.); Burton v. Schamp,

, 207 n.26 (3d Cir. 2022) (premising its discussion of “the term ‘parties’ solely in relation to its meaning in Section 636(c)(1), and . . . not tak[ing] an opinion on the meaning of ‘parties’ in other contexts”). 2 The filing fee for a civil action is $350.00.

(a). The Clerk is also directed to collect a miscellaneous administrative fee of $55.00.

(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 in forma pauperis status under

.” https://www.uscourts.gov/services-forms/fees/ district-court-miscellaneous-fee-schedule. the corresponding burden those filings have placed on the federal courts.” Hampton v. Hobbs,

(6th Cir. 1997). For that reason, Congress created economic incentives to prompt a prisoner to “stop and think” before filing a complaint.

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

(b). The constitutionality

of the fee requirements of the PLRA has been upheld by the Sixth Circuit.

. 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.

(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 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,

, 604–06 (6th Cir. 1998). Plaintiff has been an active litigant in the federal courts in Michigan. In at least three of Plaintiff’s lawsuits, the Court entered dismissals on the grounds that the cases were frivolous, malicious or failed to state a claim. See, e.g., Flakes v. Drinkert et al., No. 1:18-cv-593 (W.D. Mich. Jun. 18, 2018); Flakes v. Brown et al., No. 1:16-cv-418 (W.D. Mich. Jun. 29, 2016); Flakes v. Schiebner et al., No. 2:13-cv-211 (W.D. Mich. Oct. 3, 2013). Moreover, Plaintiff’s allegations do not fall within the “imminent danger” exception to the three-strikes rule.

(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,

(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.”

at 797–98; see also [Taylor v. First Med. Mgmt.,

(6th Cir. 2012)] (“Allegations of past dangers are insufficient to invoke the exception.”); Percival v. Gerth,

(6th Cir. 2011) (“Assertions of past danger will not satisfy the ‘imminent danger’ exception.”); cf. [Pointer v. Wilkinson,

, 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,

(internal quotation marks and citations omitted); see also Taylor,

(“Allegations that are conclusory, ridiculous, or clearly baseless are also insufficient for purposes of the imminent-danger exception.”).

Vandiver v. Prison Health Services, Inc.,

(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.

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.

Plaintiff is currently incarcerated at the Oaks Correctional Facility (ECF), but he asserts claims based on events that occurred while he was incarcerated in the Kent County Correctional Facility (KCCF). Plaintiff sues KCCF employees Deputy Unknown Campbell, Sergeant Stacy Wierengo, Lieutenant Unknown Party #1, and Captain Brad Lyons in their official and personal capacities. (ECF No. 1, PageID.2.) Plaintiff alleges that on July 16, 2022, while conducting a pat-down search, Defendant Campbell sexually assaulted him by “intentionally tamper[ing] with his anus.” (Id., PageID.6.) Prior to the offensive conduct, Defendant Campbell said, “Relax big guy, I just want to let you

know this isn’t a regular pat-down search … I am looking for something.” (Id., PageID.7.) Plaintiff states that he objected when Defendant Campbell began touching him in an inappropriate manner and it dawned on Plaintiff that the “something” that Defendant Campbell was looking for was his anus. (Id., PageID.8.) Plaintiff subsequently requested a PREA grievance by posting a sign in view of the unit camera and by filing kites. (Id., PageID.9.) Defendant Wierengo eventually interrogated Plaintiff outside the view of the camera and asked Plaintiff to explain why he needed a PREA grievance form. (Id., PageID.10–11.) Defendant Wierengo asked Plaintiff if Defendant Campbell had penetrated his anus, and Plaintiff replied that Defendant Campbell had roughly poked his anus and

had stuck his hand between Plaintiff’s buttocks like a knife, which was a violation of PREA. (Id., PageID.11.) Defendant Wierengo stated that the conduct described by Plaintiff was a textbook pat- down search and that everyone in the pod had been searched in the same manner. (Id., PageID.12.) Plaintiff stated that in his entire time in the MDOC he had never been searched in such a manner. (Id.) Defendant Wierengo responded that at KCCF, the conduct described by Plaintiff was not categorized as a sexual assault. (Id., PageID.13.) Defendant Wierengo eventually provided Plaintiff with a PREA grievance. (Id., PageID.14.) Plaintiff asserts that his step I PREA grievance was denied and that he filed a step II appeal. (Id., PageID.15–21.) Plaintiff’s appeal was denied as to his request that Defendant Wierengo be terminated from her employment for falsifying a grievance response and for retaliation. (Id., PageID.21.) Plaintiff claims that Defendants Unknown Party #1 and Lyons failed to properly supervise or train Defendants Campbell and Wierengo. (Id., PageID.27–28.) The Court notes that at the time he filed his complaint in this case, Plaintiff was residing at ECF and was no longer under the control of any of the named Defendants. In addition, Plaintiff

fails to allege any facts regarding his conditions at ECF, much less any facts showing that he was in imminent danger at the time he filed this lawsuit. 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,

(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.3 For the same reasons that the Court dismisses the action, the Court discerns no good-faith basis for an appeal. See

(a)(3); McGore v. Wrigglesworth,

(6th

3 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. Cir. 1997). Further, should Plaintiff appeal this decision, he must pay the $605.00 appellate filing fee in a lump sum, because he is prohibited from proceeding in forma pauperis on appeal by

(g). An order and judgment consistent with this opinion will be entered.

Dated: June 5, 2025 /s/Maarten Vermaat Maarten Vermaat United States Magistrate Judge