United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER DENYING APPLICATION TO PROCEED
WITHOUT PREPAYMENT OF FEES AND COSTS AND DISMISSING
V. PARKER, U.S. 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 Lakeland
Correctional Facility in Coldwater, 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 submit
the requisite filing fees when he filed his complaint: the
$350.00 filing fee and the $ 50.00 administrative fee.
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). See also In Re Prison Litigation Reform
Act, 105 F.3d 1131, 1138 (6th Cir. 1997). However, 28
U.S.C. § 1915(b) provides prisoners the opportunity to
make an initial partial payment and pay the remainder in
monthly installments. This Court will construe
Plaintiff's complaint as a request to proceed in
forma pauperis because of his failure to submit his
filing fees with his complaint. See Szymanski v. U.S.
Marshal, No. 14-cv-10305, 2014 WL 1308821, at *1 (E.D.
Mich. Mar. 28, 2014).
review of federal court records indicates the Plaintiff has
at least nine prior civil rights complaints that have been
dismissed for being frivolous, malicious, or for failing to
state a claim upon which relief could be granted. See
Burden v. Maki, No. 2:93-cv-306 (W.D. Mich. Mar. 30,
1994), appeal dismissed No. 94-1359 (6th Cir. May 6,
1994); Burden v. Torreano, No. 2:94-cv-28 (W.D.
Mich. Mar. 30, 1994), appeal dismissed No. 94-1381
(6th Cir. June 27, 1994); Burden v. Mich. State
Police, et. al., 94-cv-71286 (E.D. Mich. May
18, 1994); Burden v. Quinnell, et. al.,
94-cv-10087 (E.D. Mich. June 3, 1994), appeal
dismissed No. 94-2145 (6th Cir. May 16, 1995);
Burden v. Greeley, No. 2:94-cv- 156 (W.D. Mich. June
24, 1994), appeal dismissed No. 94-1813 (6th Cir.
Aug. 12, 1994); Burden v. Torreano, et.
al., No. 2:94-cv-133 (W.D. Mich. July 13, 1994);
appeal dismissed No. 94-1837 (6th Cir. Dec. 14,
1994); Burden v. Hawley, et. al., No.
2:94-cv-120 (W.D. Mich. Sept. 16, 1994), appeal
dismissed No. 94-2114 (6th Cir. May 16, 1995);
Burden v. Ludwick, et. al., 96-cv-71845
(E.D. Mich. May 30, 1996); appeal dismissed No.
96-1920 (6th Cir. Sep. 16, 1996); Burden v.
Kedzierzawski, No. 2:95-cv-362 (W.D. Mich. October 15,
1996), appeal dismissed No. 96-1148 (6th Cir. Mar.
addition, Plaintiff has been denied leave to proceed in
forma pauperis under 28 U.S.C. § 1915(g), the
“three-strikes” rule, because of these
dismissals. See Burden v. Cason, et. al.,
No. 1:03-cv-655 (WD. Mich. Nov. 19, 2003), appeal
dismissed No. 04-1152 (6th Cir. Mar. 19, 2004).
the Prison Litigation Reform Act of 1995
(“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);
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 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 28 U.S.C. § 1915(g); Clemons v.
Young, 240 F.Supp.2d 639, 641 (E.D. Mich. 2003). A
federal district court may raise the three strikes provision
of the PLRA sua sponte. Witzke, 966 F.Supp.
at 539. The federal courts in general, and this Court in
particular, can take judicial notice of a plaintiff's
prior dismissals for purposes of § 1915(g). See
Taylor v. United States, 161 F. App'x 483, 485-86
(6th Cir. 2005).
has had at least nine prior civil rights complaints that were
dismissed for being frivolous, malicious, or failing to state
a claim upon which relief could be granted. The fact that
most, if not all, of Plaintiff's cases were dismissed
prior to the enactment of the PLRA does not mean they cannot
be used to deny Plaintiff permission to proceed without
prepayment of fees or costs. The three strikes provision
contained in § 1915(g) applies to complaints filed prior
to April 26, 1996, the enactment date of the PLRA. See
Wilson v. Yaklich, 148 F.3d 596, 603-04 (6th Cir. 1998)
(“dismissals of prior actions entered prior to the
effective date of the PLRA may be counted towards the
‘three strikes' referred to in 28 U.S.C. §
has not alleged any facts that would establish that he is in
imminent danger of serious physical injury to come within the
§ 1915(g) exception. Mulazim v. Mich. Dept. of
Corr., 28 F. App'x 470, 472 (6th Cir. 2002).
Although Plaintiff alleges that Defendant G. Torrey, the food
service director, hit him with a dining tray while the two
men were in the kitchen mop room, this would be insufficient
to invoke the imminent danger exception to the three strikes
order to come within the “imminent danger”
exception contained in 28 U.S.C. § 1915(g), a prisoner
must show that “the threat or prison condition
‘must be real and proximate' and the danger of
serious physical injury must exist at the time the complaint
is filed.” Rittner v. Kinder, 290 F. App'x
796, 797 (6th Cir. 2008); see also Vandiver v.
Vasbinder, 416 F. App'x 560, 562 (6th Cir. 2011).
Assertions of past danger will not satisfy the imminent
danger exception. See Pointer v. Wilkinson, 502 F.3d
369, 371, n.1 (6th Cir. 2007); Rittner, 290 F.
App'x at 797. Plaintiff's allegations fail to show
that there is any imminent danger that is contemporaneous
with the filing of this complaint.
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. See Witzke, 966 F.Supp. at 540.
Plaintiff has had nine prior cases dismissed 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, 805-06 (W.D.
Tenn. 1999). The Court therefore refuses to certify that any
appeal from this dismissal would be in good faith.
IS HEREBY ORDERED that Plaintiff's in forma
pauperis status is DENIED, and the
complaint [ECF No. 1] is DISMISSED WITHOUT
PREJUDICE pursuant to 28 U.S.C. § 1915(g).
IS FURTHER ORDERED that the Certificate of
Appealability is denied because any appeal taken by the