Johnson v. Taco Bell Corp., 2023 U.S. App. LEXIS 31370 (6th Cir. Nov. 27, 2023):

ORDER

Alfred A. Johnson, Sr., a pro se Ohio prisoner, appeals the district court's summary dismissal of his civil action and imposition of filing restrictions. He now moves to proceed in forma pauperis ("IFP"). For the reasons that follow, Johnson's IFP motion is denied.

The United States District Court for the Northern District of Ohio sanctioned Johnson in 2022 after he endangered court staff by sending a baggie of fentanyl with a document that he tried to file in a case there. See Johnson v. Mgmt. Training Corp., No. 3:22-cv-01482 (N.D. Ohio Oct. 6, 2022). The district court ordered that if Johnson filed a new case, the court must first "determine whether to permit the filing." Id., slip op. at 2.

Johnson then filed this suit in the Southern District of Ohio against Taco Bell, seeking $20 million in damages because he found a foreign object in food that he ordered from a store in Carey, Ohio, causing him stomach problems. In his complaint, Johnson noted that he had filed a state-court case about this incident, which had been dismissed and not properly appealed. Because Carey, Ohio, is in the Northern District of Ohio, the Southern District transferred the case [*2]  there, and the district court screened it in accordance with its 2022 order. The district court held that the complaint "lacks merit" and dismissed it. Johnson v. Taco Bell Corp. Cal., No. 3:22 CV 2319, 2023 U.S. Dist. LEXIS 6180, 2023 WL 166008, at *1 (N.D. Ohio Jan. 12, 2023). Given Johnson's prior dangerous actions and his "apparent attempt to circumvent the Court's" sanctions order, the district court prohibited him from using the mail to submit documents and from filing new lawsuits or documents without first obtaining leave of court. 2023 U.S. Dist. LEXIS 6180, [WL] at *2. The district court also denied Johnson's motion to proceed IFP on appeal. Johnson now appeals and moves for IFP status from this court.

A party that makes the requisite showing of poverty will be granted leave to proceed IFP if his appeal is being taken in good faith, that is, if it is not frivolous. See 28 U.S.C. § 1915(a); Owens v. Keeling, 461 F.3d 763, 775 (6th Cir. 2006). An appeal is frivolous when "it lacks an arguable basis either in law or in fact." Neitzke v. Williams, 490 U.S. 319, 325, 109 S. Ct. 1827, 104 L. Ed. 2d 338 (1989).

Johnson's appeal lacks an arguable basis in law. His pleadings are devoid of factual allegations that establish federal subject-matter jurisdiction, and Johnson admitted that he already unsuccessfully litigated the same claim in state court. Moreover, the district court properly used its inherent authority to sanction Johnson for his bad-faith attempt to circumvent the filing restrictions [*3]  imposed in 2022. See White v. Phillips, 66 F.4th 615, 619 (6th Cir. 2023), cert. denied, 217 L. Ed. 2d 144, 2023 WL 6558678 (U.S. 2023) (holding that Supreme Court precedent "permit[s] the district court to resort to its inherent authority to sanction bad-faith conduct" (quoting First Bank of Marietta v. Hartford Underwriters Ins. Co., 307 F.3d 501, 514 (6th Cir. 2002))).

For these reasons, Johnson's motion to proceed IFP is DENIED. Unless he pays the $505 filing fee to the district court within thirty days of the entry of this order, this appeal will be dismissed for want of prosecution.