L Tucker v. T. Pentrich , 483 F. App'x 28 ( 2012 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 12a0501n.06
No. 10-1388
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT FILED
L.T. TUCKER, JR., ) May 15, 2012
) LEONARD GREEN, Clerk
Plaintiff-Appellant, )
) ON APPEAL FROM THE
v. ) UNITED STATES DISTRICT
) COURT FOR THE EASTERN
T. PENTRICH, et al., ) DISTRICT OF MICHIGAN
)
Defendants-Appellees. )
) OPINION
_____________________________________ )
BEFORE: KENNEDY, GUY, and DONALD, Circuit Judges.
PER CURIAM. L.T. Tucker, a Michigan state prisoner, appeals a district court order
dismissing a pro se complaint he filed pursuant to 42 U.S.C. § 1983. Tucker alleged in his complaint
and motion to proceed in forma pauperis that on June 17, 2009, several employees of the prison
where he was incarcerated assaulted him after he threatened to file a grievance against them. He
alleged that the following threats occurred between the date of the assault and the filing of this suit
on August 18, 2009:
• June 17, 2009: Defendants Pentrich and Kerkau came to Tucker’s cell and
“made ‘threats’ to cause me serious injury in the future.”
• June 24, 2009: Defendant Kerkau used a pair of handcuffs to pull Tucker’s
arms out of the food slot and said, “as soon as you file that civil shit we are
going to come in that cell and ‘break’ your ‘arm’ so that you can’t write no
more.”
• June 26, 2009: While Tucker was writing his complaint in this case,
Defendant Kerkau’s friend came to Tucker’s cell and said, “Kerkau told me
to make sure you don’t be filing shit in court, because as soon as things cool
No. 10-1388
Tucker v. Pentrich, et al.
down we going to get you out of that cell real soon in a few weeks and ‘kill
your black ass.’”
• June 27, 2009: Defendant Pentrich came to Tucker’s cell and said, “You
know I work in this unit. I am going to beat your ass for that grievance you
file crying how I kick your ass last time.” “We going to get you for
complaining so much.”
• July 8, 2009: Defendant Pentrich told Tucker, “As soon as I come back from
my leave next month me and my boys going to get you out that cell and fuck
you up real good this time.”
• July 13, 2009: Defendant Pentrich came to Tucker’s cell and stated, “When
I get you next time I am going to make sure I put your ‘Jew’ eye ball out.”
Under the “three strikes” rule, a prisoner who has filed three or more previous complaints
that have been dismissed as frivolous, malicious, or for failure to state a claim cannot proceed in
forma pauperis in any subsequent complaint unless he alleges imminent danger of serious physical
injury. See 28 U.S.C. § 1915(g). The district court dismissed Tucker’s complaint under the “three
strikes” rule, noting that the complaint could be refiled with full payment of the filing fee. Tucker
timely appealed. On appeal and through appointed counsel, Tucker concedes that he has at least
three previous complaints that were dismissed as frivolous or for failure to state a claim. He argues,
instead, that his complaint sufficiently alleged imminent danger of serious physical injury. We
agree.
“The imminent danger exception is essentially a pleading requirement subject to the ordinary
principles of notice pleading.” Vandiver v. Vasbinder, 416 F. App’x 560, 2011 WL 1105652, at *3
(6th Cir. March 28, 2011) (table) (citing Ciarpaglini v. Saini, 352 F.3d 328, 330-31 (7th Cir. 2003)).
As a pro se plaintiff, Tucker’s complaint is entitled to a liberal construction. See id. Tucker needs
only to assert allegations of imminent danger; he need not affirmatively prove those allegations at
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this stage of litigation. The allegations, though, must show a threat that is 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) (quotation marks and citations omitted). Assertions that the
prisoner has faced danger in the past and allegations that are conclusory, ridiculous, or clearly
baseless do not suffice to allege imminent harm. Id. at 797-98.
While Tucker’s complaint stems from a past incident of violence, his allegations of imminent
danger do not rest solely on that incident. Instead, he asserts continuing threats after the incident
related to the filing of a grievance or complaint about the incident.
Furthermore, Tucker’s allegations are far from conclusory. He provides specific dates on
which specific persons made specific statements. As the Second Circuit noted in Chavis v.
Chappius, 618 F.3d 162, 170 (2010), “[a]n allegation of a recent brutal beating, combined with three
separate threatening incidents, some of which involved officers who purportedly participated in that
beating, is clearly the sort of ongoing pattern of acts that satisfies the imminent danger exception.”
Because we find that Tucker has sufficiently alleged in a non-conclusory manner that he is
under imminent danger of serious bodily injury, we reverse and remand with instructions to allow
Tucker to proceed in forma pauperis.
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