Rittner v. Kinder

NOT RECOMMENDED FOR PUBLICATION
File Name: 08a0514n.06
Filed: August 20, 2008
No. 06-4472
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
DANIEL L. RITTNER, SR., )
) ON APPEAL FROM THE
Plaintiff-Appellant, ) UNITED STATES DISTRICT
) COURT FOR THE NORTHERN
v. ) DISTRICT OF OHIO
)
LESLIE KINDER, CORRECTIONS CENTER )
OF NORTHWEST OHIO, LINDA )
SHAMBARGER, JIM DENNIS, and )
SCOTT BRADBEE. )
)
Defendants-Appellees. )
BEFORE: DAUGHTREY and MOORE, Circuit Judges and DUGGAN*, District Judge
DUGGAN, District Judge. Plaintiff-appellant Daniel Rittner Sr. (“Rittner”)
appeals the district court’s dismissal of his civil rights action pursuant to the “three
strikes” rule in 28 U.S.C. § 1915(g). This court finds that the district court’s dismissal of
Rittner’s complaint was proper, as Rittner previously filed more than three lawsuits that
were dismissed on the grounds that they were frivolous, malicious, or failed to state a
claim upon which relief may be granted and there is no suggestion that Rittner “is under
imminent danger of serious physical injury.” We therefore affirm the district court’s
order.
BACKGROUND
*
The Honorable Patrick J. Duggan, United States District Judge for the Eastern
District of Michigan, sitting by designation.
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Rittner, an Ohio prisoner, filed a pro se action against defendants-appellants
pursuant to 42 U.S.C. § 1983 on August 14, 2006. On September 28, 2006, finding
that on at least five prior occasions Rittner filed civil actions that failed to state a claim
upon which relief could be granted, the district court issued an opinion and order
dismissing Rittner’s complaint pursuant to 28 U.S.C. 1915(g).
Rittner now appeals that dismissal, contending that the district court incorrectly
found that he was not in imminent danger of serious physical injury. Rittner also
contends that some or all of his prior actions were improperly dismissed.
ANALYSIS
28 U.S.C. § 1915(g) prohibits a prisoner from bringing a civil action or appeal if
the prisoner has “three strikes.” The statute reads:
In no event shall a prisoner bring a civil action or appeal a judgment in a
civil action or proceeding under this section 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). Thus under the statute, there is an exception to the three strikes
rule where the prisoner alleges that he or she is under imminent danger of serious
physical injury. Id.
The allegations in Rittner’s complaint do not warrant application of the imminent
danger exception in § 1915(g). While the Sixth Circuit has not defined the term
“imminent danger” for purposes of this section, other Circuits have held that to meet the
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Rittner, Sr. v. Kinder, et al.
requirement, 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. See, e.g.,
Ciarpaglini v. Saini, 352 F.3d 328, 330 (7th Cir. 2003); Abdul-Akbar v. McKelvie, 239
F.3d 307, 313 (3d Cir. 2001) (en banc). Thus a prisoner’s assertion that he or she
faced danger in the past is insufficient to invoke the exception. Id. Other Circuits also
have held that 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,”
Ciarpaglini, 352 F.3d at 331, or are “ ‘clearly baseless’ (i.e. are fantastic or delusional
and rise to the level of ‘irrational or wholly incredible.’ ” Gibbs v. Cross, 160 F.3d 962,
967 (3d Cir. 1998) (quoting Denton v. Hernandez, 504 U.S. 25, 33, 112 S. Ct. 1728,
1733 (1992)).
In his complaint, Rittner alleged that the defendants are preventing him from
using the prison law library and from obtaining legal assistance and materials, have not
properly processed his grievances, and have subjected him to threats and intimidation.
Rittner contended that insufficient access to the law library and legal assistance and
materials hindered his ability to file and/or prosecute certain lawsuits. There is no
indication that Rittner faces imminent physical peril as a result of his alleged inability to
file and/or prosecute lawsuits. While Rittner also alleged that he has been intimidated
and threatened if he does not stop filing grievances, the examples he provided of such
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No. 06-4472
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“threats” and “intimidation” either do not constitute threats of physical injury,1 are
described with insufficient facts and detail to establish that he is in danger of imminent
physical injury,2 or are “irrational or wholly incredible.”3
As indicated previously, Rittner also contends that some or all of the prior actions
on which the district judge based his “three strikes” finding were improperly dismissed.
The issue of whether Rittner’s earlier cases were correctly dismissed, however, is not
within the purview of this appeal and Rittner never appealed those decisions directly.
CONCLUSION
In summary, we find that the district court properly determined that Rittner was
1
For example, Rittner alleged that the following response to one of his
grievances constituted a threat and intimidation:
The CCNO [Corrections Center of Northwest Ohio] Executive Director is
not here to be your legal assistant. You are to work through your Case
Manager and Ms. Shambarger as I have directed you in the past. This is
frivolous. You are abusing the grievance procedures and my time. Cease
and desist.
(Dist. Ct. Doc. 1, ¶ 47, quoting Ex. 15.)
2
For example, Rittner alleged: “In considering the totality of the facts and
information g[]athered by Plaintiff he had good reason to fear for his life. The
intimidation was incredible. All the inmates in the unit were w[e]ll aware of the threats
received from Dennis and his staff. (Dist. Ct. Doc. 1, ¶ 49.)
3
For example, Rittner claimed that “the continued responses to his grievances”
(i.e. denials, that his grievances are frivolous, and the he must stop abusing the
grievance process) “lead [him] to fear for his life.” (Dist. Ct. Doc. 1, ¶ 48.) Rittner also
alleged that a private investigator working for him “firmly warned [him] of the threats
against him made by Dennis” and advised him: “YOU NEED TO STOP MAKING
COMPLAINTS, YOU ARE GOING TO GET HURT.” (Id., ¶ 62.)
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No. 06-4472
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subject to the three strikes rule and that his complaint failed to suggest that he was
“under imminent danger of serious physical injury.” Therefore, we AFFIRM the district
court’s order dismissing Rittner’s complaint pursuant to § 1915(g).
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