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Price v. Dillon

United States District Court, Eastern District of Michigan, Southern Division

January 30, 2015

CURWOOD-LEWIS PRICE, Plaintiff,
v.
ANDY DILLON, JOHN E. NIXON, CATHY M. GARRETT, and RUTH JOHNSON, Defendants,

OPINION AND ORDER DISMISSING THE PLAINTIFF’S COMPLAINT AND DENYING PLAINTIFF’S APPLICATION TO PROCEED WITHOUT PREPAYING FEES OR COSTS AND MOTION FOR DISCOVERY

DAVID M. LAWSON, United States District Judge

This matter is before the Court on plaintiff Curwood-Lewis Price’s pro se complaint. The plaintiff, a state prisoner currently incarcerated at the Lakeland Correctional Facility in Coldwater, Michigan, asks the Court to file a lien against the defendants for allegedly seizing his property unlawfully. On December 1, 2014, Magistrate Judge R. Steven Whalen signed an order of deficiency requiring the plaintiff to submit an application to proceed without prepayment of fees and costs or to pay the required filing fee. The plaintiff filed an application to proceed without prepayment of fees or costs on January 26, 2015 along with a motion to proceed and for discovery. However, the Court has since further reviewed the plaintiff’s complaint and concludes that the plaintiff cannot proceed in forma pauperis because at least three of the plaintiff’s prior civil rights complaints have been dismissed as frivolous, malicious, or for failing to state a claim upon which relief could be granted in violation of 28 U.S.C. § 1915(g). The Court therefore will deny the plaintiff’s application, motion to proceed and for discovery, and dismiss the plaintiff’s complaint.

The Prison Litigation Reform Act of 1995 (“PLRA”), Pub. L. No. 104-134, 110 Stat. 1321 (April 26, 1996) precludes a prisoner from bringing a civil action in forma pauperis if a court previously dismissed three or more complaints as frivolous, malicious, or for failing to state a claim upon which relief may be granted unless the prisoner is in imminent danger of serious physical injury. See 28 U.S.C. § 1915(g) (1996); Thaddeus-X v. Blatter, 175 F.3d 378, 400 (6th Cir. 1999); Witzke v. Hiller, 966 F.Supp. 538, 540 (E.D. Mich. 1997). A federal district court may raise the three strikes provision sua sponte, Witzke, 966 F.Supp. at 539, and may take judicial notice of a plaintiff’s prior dismissals, Green v. Nottingham, 90 F.3d 415, 418 (10th Cir. 1996); Anderson v. Sundquist, 1 F.Supp.2d 828, 830 (W.D. Tenn. 1998).

Courts have dismissed at least three of the plaintiff’s prior civil rights complaints as frivolous, malicious, or for failing to state a claim upon which relief could be granted. See Price v. Hoffner, No. 1:12-CV-1185, 2012 WL 6563112 (W.D. Mich. December 17, 2012); Price v. United States of America, No. 2:11-CV-15166, 2011 WL 5975292 (E.D. Mich. Nov. 29, 2011); Price v. Third Circuit Court Crim. Div., No. 2:11-CV-11325, 2011 WL 2600637 (E.D. Mich. June 30, 2011). And the plaintiff has not alleged any facts in his complaint to suggest that he is in imminent danger of serious physical injury. The Court therefore will dismiss the plaintiff’s complaint pursuant to 28 U.S.C. § 1915(g).

The plaintiff may revive any of the claims dismissed under 28 U.S.C. § 1915(g) if he decides to pay the $350 filing fee. See 28 U.S.C. § 1914; Witzke, 966 F.Supp. at 540. If the plaintiff is unable to pay the full amount, he may submit a partial filing fee and pay the remainder in installments. See 28 U.S.C. § 1915(a); Miller v. Campbell, 108 F.Supp.2d 960, 962 (W.D. Tenn. 2000).

Accordingly, it is ORDERED that plaintiff Curwood-Lewis Price’s complaint is DISMISSED pursuant to 28 U.S.C. § 1915(g).

It is further ORDERED that the plaintiff’s application to proceed without prepaying fees or costs [dkt. #8] is DENIED.

It is further ORDERED that the plaintiff’s motion to proceed and for discovery pursuant to Federal Rules of Civil Procedure 69(a)(2) [dkt. #7] is DENIED.


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