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Gresham v. Smith

United States District Court, W.D. Michigan, Southern Division

January 4, 2017

MICHAEL GRESHAM et al., Plaintiff,
v.
WILLIE SMITH et al., Defendants.

          OPINION

          Paul L. Maloney United States District Judge.

         Plaintiff Michael Gresham, together with 18 other prisoners from multiple prisons, have filed a complaint pursuant to 42 U.S.C. § 1983 against many dozens of Defendants. Plaintiff Gresham has sought leave to proceed in forma pauperis in compliance with 28 U.S.C. 1915(a). Ordinarily, where there are multiple plaintiffs, each plaintiff is proportionately liable for any filing fees or costs. See Talley-Bey v. Knebl, 168 F.3d 884, 887 (6th Cir. 1999); In re Prison Litigation Reform Act, 105 F.3d 1131, 1137 (6th Cir. 1997). However, Plaintiff Gresham, who describes himself as “lead plaintiff” (ECF No. 1, PageID.3), is subject to filing restrictions in this Court, imposed upon him by Judge Janet T. Neff of this Court, as the result of his prior abusive filings. See Gresham et al. v. Washington et al., No. 1:15-cv-1067 (W.D. Mich. Jan. 6, 2016) (Op. & Order) (No. 1:15cv1067, ECF Nos. 8, 10, PageID.152-155, 158). In her order, Judge Neff precluded Plaintiff from filing future actions in this Court that raised claims arising out of more than a single action or event, barred Plaintiff from filing jointly with another prisoner, barred Plaintiff from joining any other action, and barred Plaintiff from filing a complaint exceeding ten pages in length. Plaintiff was advised that any violation of these restrictions would result in dismissal of his case. (Id.)

         In the instant wide-ranging, 130-page complaint, Plaintiff Gresham has violated all of the restrictions set forth in the January 6, 2016 order in Case No. 1:15-cv-1067. Therefore, because no other Plaintiff was properly joined in the action, Plaintiff Gresham will be held solely responsible for the $400.00 civil action filing fee. In addition, because Plaintiff Gresham has filed at least three lawsuits that were dismissed as frivolous, malicious or for failure to state a claim, he is barred from proceeding in forma pauperis under 28 U.S.C. § 1915(g). The Court therefore will order Plaintiff to pay the $400.00 civil action filing fee applicable to those not permitted to proceed in forma pauperis. The Court also will dismiss Plaintiff Gresham's complaint as a violation of the Court's earlier order. Plaintiff Gresham will continue to be responsible for payment of the $400.00 filing fee in accordance with In re Alea, 286 F.3d 378, 380-81 (6th Cir. 2002). Finally, because the claims of the remaining Plaintiffs are misjoined, the Court will dismissed them from this action without prejudice.

         Discussion

         I. Application of Three-Strikes Rule

         The Prison Litigation Reform Act (PLRA), Pub. L. No. 104-134, 110 Stat. 1321(1996), which was enacted on April 26, 1996, amended the procedural rules governing a prisoner's request for the privilege of proceeding in forma pauperis. As the Sixth Circuit has stated, the PLRA was “aimed at the skyrocketing numbers of claims filed by prisoners - many of which are meritless - and the corresponding burden those filings have placed on the federal courts.” Hampton v. Hobbs, 106 F.3d 1281, 1286 (6th Cir. 1997). For that reason, Congress put into place economic incentives to prompt a prisoner to “stop and think” before filing a complaint. Id. For example, a prisoner is liable for the civil action filing fee, and if the prisoner qualifies to proceed in forma pauperis, the prisoner may pay the fee through partial payments as outlined in 28 U.S.C. § 1915(b). The constitutionality of the fee requirements of the PLRA has been upheld by the Sixth Circuit. Id. at 1288.

         In addition, another provision reinforces the “stop and think” aspect of the PLRA by preventing a prisoner from proceeding in forma pauperis when the prisoner repeatedly files meritless lawsuits. Known as the “three-strikes” rule, the provision states:

In no event shall a prisoner bring a civil action or appeal a judgment in a civil action or proceeding under [the section governing proceedings in forma pauperis] 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). The statutory restriction “[i]n no event, ” found in § 1915(g), is express and unequivocal. The statute does allow an exception for a prisoner who is “under imminent danger of serious physical injury.” The Sixth Circuit has upheld the constitutionality of the three-strikes rule against arguments that it violates equal protection, the right of access to the courts, and due process, and that it constitutes a bill of attainder and is ex post facto legislation. Wilson v. Yaklich, 148 F.3d 596, 604-06 (6th Cir. 1998); accord Pointer v. Wilkinson, 502 F.3d 369, 377 (6th Cir. 2007) (citing Wilson, 148 F.3d at 604-06); Rodriguez v. Cook, 169 F.3d 1176, 1178-82 (9th Cir. 1999); Rivera v. Allin, 144 F.3d 719, 723-26 (11th Cir. 1998); Carson v. Johnson, 112 F.3d 818, 821-22 (5th Cir. 1997).

         Plaintiff Gresham has been an active litigant in the federal courts in Michigan. In eight of his cases, all of his claims were dismissed because they were frivolous, malicious or failed to state a claim. See Gresham v. Caruso et al., No. 2:10-cv-196 (W.D. Mich. Oct. 27, 2011); Gresham et al. v. Canlis et al., No. 2:11-cv-179 (W.D. Mich. July 29, 2011); Gresham v. Paine et al., No. 1:10-cv-1146 (W.D. Mich. Mar. 8, 2011); Gresham v. Caruso et al., No. 1:10-cv-1038 (W.D. Mich. Jan. 26, 2011); Gresham v. Wolak et al., No. 2:10-cv- 239 (W.D. Mich. July 25, 2011); Gresham v. Verville et al., No. 2:10-cv-198 (W.D. Mich. Jan. 19, 2011); Gresham v. Caruso et al., No. 2:10-cv-195 (W.D. Mich. Apr. 11, 2011); Gresham v. Mich. Dep't of Corr. et al., No. 2:07-cv-241 (W.D. Mich. June 9, 2008). Plaintiff also has been denied leave to proceed in forma pauperis in numerous cases. See Gresham v. Miniard et al., No. 1:16-cv-427 (W.D. Mich. June 7, 2016); Gresham v. Christiansen et al., No. 1:16-cv-428 (W.D. Mich. May 13, 2016); Gresham v. Austin et al., 2:16-cv-71 (W.D. Mich. May 2, 2016); Gresham et al. v. Yunker et al., No. 2:13-cv-221 (W.D. Mich. Aug. 29, 2013); Gresham v. Nader et al., 2:13-cv-212 (W.D. Mich. July 22, 2013); Gresham et al. v. Napel et al., No. 2:13-cv-176 (W.D. Mich. June 12, 2013); Gresham v. Prelesnik et al., No. 1:12-cv-276 (W.D. Mich. July 2, 2012); Gresham v. Czop et al., No. 1:12-cv-494 (W.D. Mich. June 18, 2012); Gresham v. Heyns et al., No. 1:12-cv-277 (W.D. Mich. Apr. 11, 2012); Gresham v. Snyder et al., No. 1:12-cv-143 (W.D. Mich. Mar. 6, 2012); Gresham v. Mutschler et al., No. 2:12-cv-12 (W.D. Mich. Apr. 20, 2012); Gresham v. Snyder et al., No. 2:12-cv-22 (W.D. Mich. Mar. 30, 2012); Gresham v. Mutschler et al., No. 2:12-cv-9 (W.D. Mich. Feb. 10, 2012); Gresham v. Snyder et al., No. 2:12-cv-5 (W.D. Mich. Jan. 27, 2012); Gresham v. Violetta et al., No. 2:12-cv-24 (W.D. Mich. Feb. 6, 2012); Gresham v. Dahl et al., No. 2:12-cv-21 (W.D. Mich. Feb. 6, 2012); Gresham v. Napel et al., No. 2:11-cv-520 (W.D. Mich. Feb. 6, 2012); Gresham v. LaChance et al., No. 2:11-cv-231 (W.D. Mich. June 24, 2011); Dennis et al v. Canlis et al., No. 2:11-cv-186 (W.D. Mich. June 6, 2011).

         Moreover, Plaintiff's allegations do not fall within the exception to the three-strikes rule because he does not allege any facts establishing that he is under imminent danger of serious physical injury. Indeed, despite the length of his complaint, Plaintiff's claims appear to arise out of all of the alleged harms he has experience for more than four years and amount to little more than a series of sometimes irrational “demands, ” including the following: immediate exoneration; expungement of his criminal record; revival of all of his past actions in this Court; reform of the prisons of the United States; permission to father 20 to 50 children; and removal of multiple judges of this Court. Because Plaintiff's allegations do not meet the imminent-danger exception, he is not entitled to proceed in forma pauperis.

         In light of the foregoing, § 1915(g) prohibits Plaintiff from proceeding in forma pauperis in this action. Plaintiff therefore must pay the entire civil action filing fee, which is $400.00. Plaintiff will continue to be responsible for payment of the $400.00 filing fee, notwithstanding the dismissal of his complaint.

         II. Failure to Comply with Court Order

         As is apparent from the preceding recitation of Plaintiff's prior meritless actions and his failures to comply with the Federal Rules of Civil Procedure and the orders of this Court, Judge Neff reasonably concluded that Plaintiff should be placed under filing restrictions in this Court. See Gresham v. Washington et al., No. 1:16-cv-1067 (W.D. Mich. Jan. 6, 2016) (1:16cv1067, ECF Nos. 8, 10, PagID.152-155, 158). As indicated above, those restrictions barred Plaintiff from filing any complaint that (1) ...


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