United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER DENYING APPLICATION TO PROCEED
WITHOUT PREPAYMENT OF FEES AND COSTS AND DISMISSING
D. Borman United States District Judge.
matter is before the Court on plaintiff's pro se
civil rights complaint filed pursuant to 42 U.S.C. §
1983. Plaintiff is an inmate confined at the Baraga Maximum
Correctional Facility in Baraga, Michigan. Upon review of
plaintiff's case and his litigation history in the
federal courts, this Court concludes that his case must be
dismissed without prejudice pursuant to 28 U.S.C. §
28 U.S.C. § 1914(a) provides that “[t]he clerk of
each district court shall require the parties instituting any
civil action, suit or proceeding in such court, whether by
original process, removal or otherwise, to pay a filing fee
of $350 ....” See also Owens v. Keeling, 461
F.3d 763, 773 (6th Cir. 2006). Plaintiff failed to provide
the $350.00 filing fee, plus a $ 50.00 administrative fee,
when he filed his complaint.
Prisoner Litigation Reform Act of 1995 (PLRA) states that
“if a prisoner brings a civil action or files an appeal
in forma pauperis, the prisoner shall be required to
pay the full amount of a filing fee.” 28 U.S.C. §
1915(b)(1)(as amended). See also In Re Prison Litigation
Reform Act, 105 F.3d 1131, 1138 (6th Cir. 1997). The
in forma pauperis statute, 28 U.S.C. § 1915(a),
does provide prisoners the opportunity to make a
“downpayment” of a partial filing fee and pay the
remainder in installments. See Miller v. Campbell,
108 F.Supp.2d 960, 962 (W.D. Tenn. 2000).
review of federal court records indicates that the plaintiff
has four prior civil rights complaints that have been
dismissed by federal courts for being frivolous, malicious,
or for failing to state a claim upon which relief could be
granted. See Howard v. United States, 2:14-CV-99
(W.D. Mich. Dec. 5, 2014); Howard v. Horton, No.
2:14-CV-127, 2014 WL 3519110 (W.D. Mich. July 15, 2014);
Howard v. United States, No. 2:13-CV-340, 2014 WL 801423
(W.D. Mich. Feb. 28, 2014); Howard v. Mich.Dep't of
Corr. et al., No. 2:11-CV-12630 (E.D. Mich. Aug. 9,
addition, plaintiff has twice been denied leave to proceed
in forma pauperis under 28 U.S.C. § 1915(g),
the “three-strikes” rule, because of these
frivolity dismissals. See Howard v. Woods, et. al.,
No. 2:14-CV-126 (WD. Mich. Oct. 23, 2014); Howard v.
Horton, 2:14-CV-182 (W.D. Mich. Oct. 1, 2014).
the PLRA, a federal court may dismiss a case if, on 3 or more
previous occasions, a federal court dismissed the
incarcerated plaintiff's action because it was frivolous
or malicious or failed to state a claim for which relief may
be granted. 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). The three strikes provision of the PLRA
prohibits a prisoner, who has had three prior suits dismissed
for being frivolous, from proceeding in forma
pauperis in a civil rights suit absent an allegation
that the prisoner is in imminent danger of serious physical
injury. See Clemons v. Young, 240 F.Supp.2d 639, 641
(E.D. Mich. 2003). A federal district court may sua
sponte raise the three strikes provision of the PLRA on
its own initiative. Witzke, 966 F.Supp. at 539.
has had at least four prior civil rights complaints which
were dismissed for being frivolous, malicious, or failing to
state a claim upon which relief could be granted. In
addition, plaintiff was subsequently informed by federal
district judges on two different occasions that he was
precluded from proceeding in forma pauperis in these
other civil rights actions pursuant to § 1915(g) because
of these prior dismissals.
has not alleged any facts which would establish that he is in
imminent danger of serious physical injury, and thus, he does
not come within the exception to the mandate of 28
U.S.C.§ 1915(g), which prohibits him from proceeding
in forma pauperis in light of his four prior
frivolity dismissals. Mulazim v. Michigan Dept. of
Corrections, 28 F. App'x. 470, 472 (6th Cir. 2002).
civil rights complaint is therefore subject to dismissal
pursuant to § 1915(g). Plaintiff may, however, resume
any of the claims dismissed under § 1915(g) if he
decides to pay the filing fee under the fee provisions of 28
U.S.C. § 1914. Witzke, 966 F.Supp. at 540.
plaintiff has had four prior cases dismissed against him for
being frivolous, malicious, or failing to state a claim,
1915(g) bars him from appealing in forma pauperis. See
Drummer v. Luttrell, 75 F.Supp.2d 796, 805-806 (W.D.
Tenn. 1999). The Court therefore refuses to certify that any
appeal from this dismissal would be in good faith.
HEREBY ORDERED that the plaintiff's
in forma pauperis status is DENIED
and the complaint [Dkt. # 1] is DISMISSED WITHOUT
PREJUDICE pursuant to 28 U.S.C. § 1915(g). IT
IS FURTHER ORDERED AND CERTIFIED that any
appeal taken by the plaintiff would not be done in good