United States District Court, W.D. Michigan, Southern Division
OPINION DENYING LEAVE TO PROCEED IN FORMA PAUPERIS -
J. JONKER, CHIEF UNITED STATES DISTRICT JUDGE.
Charles Judson Holbrook, a prisoner incarcerated at St. Louis
Correctional Facility, filed a complaint pursuant to 42
U.S.C. § 1983. Plaintiff seeks leave to proceed in
forma pauperis. Because Plaintiff 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 will order Plaintiff to pay the $400.00
civil action filing fee applicable to those not permitted to
proceed in forma pauperis. This fee must be paid
within twenty-eight (28) days of this opinion and
accompanying order. If Plaintiff fails to pay the fee, the
Court will order that this case be dismissed without
prejudice. Even if the case is dismissed, Plaintiff must pay
the $400.00 filing fee in accordance with In re
Alea, 286 F.3d 378, 380-81 (6th Cir. 2002).
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 created 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.
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).
has been an active litigant in the federal courts in
Michigan. In more than three of Plaintiff's lawsuits, the
Court entered dismissals on the grounds that the cases were
frivolous, malicious, or failed to state a claim. See
Holbrook v. Pols , No. 1:16-cv-1151 (W.D. Mich. Dec. 21,
2016); Holbrooks v. Johnston, No. 1:16-cv-829 (W.D.
Mich. Oct. 27, 2016); Holbrook v. Haehnel , No.
2:16-cv-19 (W.D. Mich. Mar. 24, 2016); Holbrook v.
Pols , No. 2:15-cv-170 (W.D. Mich. Feb. 9, 2016).
Moreover, Plaintiff's allegations do not fall within the
exception to the three-strikes rule because Plaintiff does
not allege facts showing that he is in imminent danger of
serious physical injury. In fact, Plaintiff raises a claim
about an alleged illegal search that occurred in 2009, the
same claim he raised on six prior occasions. See Holbrook
v. Pols , No. 1:17-cv-292 (W.D. Mich. May 18, 2017);
Holbrook b. Pols , No. 2:16-cv-237 (W.D. Mich. Jan.
30, 2017); Holbrook v. Pols , No. 1:16-cv-1151 (W.D.
Mich. Dec. 21, 2016); Holbrook v. Pols , No.
2:16-cv-118 (W.D. Mich. June 24, 2016); Holbrook v.
Pols , No. 2:16-cv-78 (W.D. Mich. May 31, 2016);
Holbrook v. Pols , No. 2:15-cv-170 (W.D. Mich. Feb.
9, 2016). As Plaintiff previously was informed, a
prisoner's assertion that he faced danger in the past is
insufficient to meet the imminent-danger exception to §
1915(g). Rittner v. Kinder, 290 F. App'x 796,
797-98 (6th Cir. 2008). In addition, as the Court discussed
in its opinion and judgment dismissing the complaint in Case
No. 2:15-cv-170, Plaintiff's allegations fail to state a
claim because they are long since barred by the statute of
limitations. (No. 2:15-cv-170, ECF No. 9, PageID.19-20.) As
the Court also previously advised Plaintiff, his continuing
attempts to obtain a different result on a claim already
decided against him are frivolous. (No. 1:16-cv-1151, ECF No.
§ 1915(g) prohibits Plaintiff from proceeding in
forma pauperis in this frivolous action. Plaintiff has
twenty-eight (28) days from the date of entry of this order
to pay the entire civil action filing fee, which is $400.00.
When Plaintiff pays his filing fee, the Court will screen his
complaint as required by 28 U.S.C. § 1915A and 42 U.S.C.
§ 1997e(c). If Plaintiff does not pay the filing fee
within the 28-day period, this ...