United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER DISMISSING COMPLAINT PURSUANT TO 28
U.S.C. § 1915(G)
CARAM STEEH UNITED STATES DISTRICT JUDGE.
matter is before the Court on Plaintiff Michael Kitchen's
pro se civil rights complaint filed pursuant to 42
U.S.C. § 1983. Plaintiff is a state prisoner who is
currently incarcerated at the Carson City Correctional
Facility in Carson City, Michigan. Upon review of
plaintiff's case and his litigation history in the
federal courts, this Court concludes that his civil rights
complaint must be dismissed without prejudice pursuant to 28
U.S.C. § 1915(g).
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. The 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), provides
prisoners with the opportunity to make a
“downpayment” of a partial filing fee and pay the
remainder of the fee in installments. See Miller v.
Campbell, 108 F.Supp.2d 960, 962 (W.D. Tenn. 2000).
search of federal court records indicates that plaintiff has
at least three 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. Kitchen-Bey v. Michigan Dept. Of
Corrections, No. 2:05-CV-267, 2006 WL 62827 (W.D Mich.
Jan. 10, 2006); Kitchen-Bey v. Vidor, et. al., No.
1:93-CV-00034 (W.D. Mich. Apr. 7, 1993)(Adopting Report and
Recommendation of Magistrate Judge); Kitchen-Bey v.
Kitchen, No. 2:93-CV-71555 (E.D. Mich. May 13,
the Prison Litigation Reform Act of 1995
(‘‘PLRA''), a federal court may dismiss a
prisoner civil case if, in 3 or more prior cases, 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 in the
absence of allegations 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. Moreover, 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). Green v. Nottingham, 90 F.3d 415, 418 (10th
Cir. 1996); Anderson v. Sundquist, 1 F.Supp.2d 828,
830 (W.D. Tenn. 1998).
has at least three prior civil rights complaints which were
dismissed for being frivolous, malicious, or failing to state
a claim upon which relief could be granted.
Court is aware the case of Kitchen-Bey v. Michigan Dept.
Of Corrections, No. 2:05-CV-267, 2006 WL 62827 (W.D
Mich. Jan. 10, 2006) was dismissed in part without prejudice
because plaintiff failed to exhaust his administrative
remedies with respect to several claims. Plaintiff's
remaining claims were dismissed for failing to state a claim
upon which relief could be granted. Id. at * 4.
civil rights complaint is dismissed in part without prejudice
for failure to exhaust administrative remedies and in part
with prejudice because ‘it is frivolous, malicious, or
fails to state a claim upon which relief may be granted,
' the dismissal counts as a strike under 28 U.S.C. §
1915(g). See Pointer v. Wilkinson, 502 F.3d 369,
372-77 (6th Cir.2007). Plaintiff's 2006 dismissal counts
as a strike for purposes of 28 U.S.C. § 1915(g).
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 three prior
frivolity dismissals. Mulazim v. Michigan Dept. of
Corrections, 28 F. App'x. 470, 472 (6th Cir. 2002).
Although plaintiff alleges in his relief section several
times that the defendants' actions have caused him
“pain and suffering, ” (See Doc. # 1, Pg ID 18,
19, 20), plaintiff fails to elaborate what type of injury or
injuries he has incurred. Because plaintiff has not
elaborated on the nature of the harm that he faces, he is not
entitled to invoke the imminent danger exception to §
1915(g). See Wilson v. Fifty Second Dist. Court, 49
F. App'x. 610, 611 (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.
has had at least three 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.