United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER DENYING PETITIONER LEAVE TO PROCEED
IN FORMA PAUPERIS AND DISMISSING COMPLAINT WITHOUT
PREJUDICE (Dkt. 1)
TERRENCE G. BERG UNITED STATES DISTRICT JUDGE
McGore, a prisoner at Bellamy Creek Correctional Facility in
Ionia, Michigan, filed a pro se civil rights
complaint pursuant to 42 U.S.C. § 1983 on September 12,
2017. Dkt. 1.
subsequently filed a Motion to Amend the Complaint, Dkt. 2, a
second Complaint, Dkt. 5, and a Motion for Relief from
Judgment(s) dismissing his prior 42 U.S.C. §1983 suits.
Complaints, Plaintiff raises claims concerning his state
court criminal proceedings and seeks declaratory relief and
monetary damages. Plaintiff appears to seek leave to proceed
without prepayment of the filing fee. For the reasons
explained below, he may not do so, and his Complaint, Dkt. 1,
Motion to Amend the Complaint, Dkt. 2, his second Complaint,
Dkt. 5, are all DISMISSED without prejudice.
Plaintiff's Motion for Relief from Judgment from his
prior 42 U.S.C. §1983 suit, Dkt. 6, is also
has not paid the filing fee for this action, nor has he
submitted an application for leave to proceed in forma
pauperis. The Court concludes, however, that Plaintiff
is seeking leave to proceed without prepayment of the filing
fee because he checked the “IFP” box his civil
coversheet, Dkt. 1 at Pg ID 9, and filed his Prisoner Trust
Account Statement. Dkt. 3.
prisoners may seek to bring a civil action without prepayment
of the fees and costs for the action. 28 U.S.C. §
1915(a)(2). A prisoner, however, may be barred from
proceeding in forma pauperis in a civil action under
In no event shall a prisoner bring a civil action or appeal a
judgment in a civil action or proceeding under this section,
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).
short, this “three strikes” provision prohibits
prisoners from bringing lawsuits in federal court by
proceeding in forma pauperis, if, on three or more
previous occasions, that prisoner has had cases dismissed
because the prisoner's action was frivolous, malicious,
or failed to state a claim on which relief may be granted. 28
U.S.C. § 1915(g) (1996).
Darryl McGore's current complaints are barred by this
provision because he has already had more than three prior
cases dismissed as frivolous, or for failure to state a
claim. See McGore v. Hudson, No. 1:98-cv-10080 (E.D.
Mich. June 2, 1998); McGore v. Hunter, No.
2:96-cv-74326 (E.D. Mich. Oct. 15, 1996); McGore v.
Hunter, No. 2:96-cv-74327 (E.D. Mich. Feb. 10, 1997);
McGore v. Jones, No. 2:96-cv-74614 (E.D. Mich. Nov.
8, 1996); McGore v. Michigan Supreme Court Judges,
No. 1:94-cv-517 (W.D. Mich. Jan. 25, 1995); McGore v.
Nardi, No. 2:93-cv-137 (W.D. Mich. Aug. 2, 1993);
McGore v. Stine, No. 2:93-cv-112 (W.D. Mich. July
26, 1993); McGore v. Stine, No. 2:93-cv-77 (W.D.
Mich. Apr. 30, 1993).
plaintiff may maintain a civil action despite having had
three or more civil actions dismissed as frivolous if the
prisoner is “under imminent danger of serious physical
injury.” 28 U.S.C. § 1915(g). To establish that
his complaint falls within the exception to the three strikes
rule, a prisoner must allege that he is under imminent danger
at the time that he seeks to file his complaint and proceed
in forma pauperis. Vandiver v. Prisoner Health
Services, Inc., 727 F.3d 580, 585 (6th Cir. 2013).
Plaintiff's allegations of violations connected with
state court criminal proceedings do not allege any actual or
imminent physical injury. As such, his claims do not fall
within the “imminent danger” exception of §
because federal law requires it, the Court
DENIES Plaintiff's application for leave
to proceed in forma pau-peris, as well as his Motion
for Relief from Judgment for his previously dismissed
§1983 suits listed above. Additionally, the Court
DISMISSES the complaint pursuant to 28
U.S.C. § 1915(g). This dismissal is without prejudice to
Plaintiff filing a new ...