United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER DISMISSING COMPLAINT PURSUANT TO 28
U.S.C. § 1915(g)
HONORABLE SEAN F. COX UNITED STATES DISTRICT JUDGE
matter is before the Court on Plaintiff Ali Darwich's
pro se civil rights complaint filed pursuant to 42
U.S.C. § 1983 and Bivens v. Six Unknown Named
Agents of Federal Bureau of Narcotics, 403 U.S. 388
(1971). Plaintiff is a federal prisoner incarcerated at the
United States Penitentiary at Lewisburg, Pennsylvania. 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), gives
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).
search of federal court records indicates that plaintiff had
two prior civil rights complaints that were dismissed by
federal courts pursuant to 28 U.S.C. § 1915(e)(2)(B) and
§ 1915A(b) for being frivolous, malicious, or for
failing to state a claim upon which relief could be granted.
Darwich v. Department of Homeland Security, et. al.,
No. 11-CV-10468 (E.D. Mich. May 13, 2011); Darwich v.
Walker, No. 11-CV-12190 (E.D. Mich. June 21, 2011).
Plaintiff had a third case that was dismissed in part
pursuant to Fed. R. 12(b)(6) for failing to state a claim
upon which relief could be granted and in part pursuant to 28
U.S.C. § 1915(e)(2)(B) and § 1915A(b) with respect
to a remaining defendant. Darwich v. U.S. Dep't
of Justice, No. 13-CV-10757-DT, 2013 WL 5775392
(E.D. Mich. Oct. 25, 2013)(Adopting Report and Recommendation
of Magistrate Judge).
has requested to proceed without prepayment of fees.
28 U.S.C. § 1915(g), however, states that:
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), a federal court shall 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. Thaddeus-X v. Blatter,
175 F.3d 378, 400 (6th Cir. 1999); Witzke v. Hiller,
966 F.Supp. 538, 540 (E.D. Mich. 1997)(Gadola, J.). 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 Clemons
v. Young, 240 F.Supp.2d 639, 641 (E.D. Mich.
2003)(Lawson, J.). 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. 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 Fed.Appx. 483, 485-86 (6th Cir. 2005).
has two prior civil rights complaints which were dismissed by
a federal district court pursuant to 28 U.S.C. §
1915(e)(2)(B) and § 1915A(b) for being frivolous,
malicious, or failing to state a claim upon which relief
could be granted. Plaintiff's 2013 case counts as a third
strike even though it was dismissed in part under
Fed.R.Civ.P. 12(b)(6) for failing to state a claim upon which
relief could be granted, because a dismissal under 12(b)(6)
counts as a strike under § 1915(g). See Coleman v.
Tollefson, 733 F.3d 175, 177 (6th Cir. 2013), as
amended on denial of reh'g and reh'g en banc
(Jan. 17, 2014), aff'd, 135 S.Ct. 1759 (2015).
Plaintiff's three prior dismissals preclude him from
proceeding without prepayment of fees.
plaintiff did not allege 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
strikes. Mulazim v. Michigan Dept. of Corrections,
28 Fed.Appx. 470, 472 (6th Cir. 2002).
civil rights complaint is 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.
three strikes under § 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 refuses
to certify ...