Leon Percival v. Denise Gerth
443 F. App'x 944
6th Cir.2011Background
- Percival, a Michigan prisoner proceeding pro se, filed an amended civil rights action on June 8, 2010 in the Western District of Michigan against Denise Gerth, seeking damages and injunctive relief in her individual and official capacities.
- The bulk of his complaint alleged past mail and legal-paper mishandling by Gerth at Alger Maximum Correctional Facility, with additional asserted events at Marquette Branch Prison in spring 2009.
- Percival alleged that an assailant hit him, a television was stolen, and another prisoner was recruited to stab him; the assailant was not incarcerated at Marquette at the time of the filing.
- He blamed Gerth for the attack and alleged she encouraged contacts with his family, conspired with Marquette employees, and promised leniency to attackers.
- The district court denied in forma pauperis status under § 1915(g), ordered payment of the filing fee within 28 days, and dismissed the case without prejudice after Percival failed to pay.
- Percival moved for relief from judgment under Rule 60(b)(1), claiming error in the denial of in forma pauperis and entitlement to the imminent-danger exception; the district court denied the motion.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Rule 60(b) relief was properly denied. | Percival argues the district court misapplied the law and erred in denying imminent danger. | Gerth argues no abuse of discretion; imminent danger not shown at filing. | No abuse of discretion; imminent danger not shown at filing. |
| Whether the imminent danger exception to § 1915(g) applies. | Percival contends danger persisted at filing and thus qualifies. | Gerth contends danger did not exist at the time the complaint was filed. | Imminent danger not shown at filing; exception not satisfied. |
| Whether past danger can satisfy the imminent danger requirement. | Percival relies on alleged 2009 incidents to support imminent danger. | Defendant asserts danger must exist at filing; past events do not suffice. | Past danger cannot satisfy the imminent danger requirement. |
Key Cases Cited
- Wilson v. Yaklich, 148 F.3d 596 (6th Cir. 1998) (three-strikes rule under § 1915(g) and its exception for imminent danger)
- Pointer v. Wilkinson, 502 F.3d 369 (6th Cir. 2007) (imminent danger requires danger at time of filing)
- Jinks v. AlliedSignal, Inc., 250 F.3d 381 (6th Cir. 2001) (Rule 60(b) not a vehicle for relitigating underlying merits)
- Jones v. Ill. Cent. R.R. Co., 617 F.3d 843 (6th Cir. 2010) (abuse of discretion standard for Rule 60(b) rulings; proper standard application)