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Stanley v. U.S. Department of Justice

United States District Court, E.D. Michigan, Southern Division

July 25, 2019

JOHNNIE STANLEY, Plaintiff,
v.
U.S. DEPARTMENT OF JUSTICE, Defendant.

          ORDER DISMISSING CASE

          AVERN COHN, UNITED STATES DISTRICT JUDGE

         I.

         This is a prisoner case. On June 10, 2019, plaintiff Johnnie Stanley, a state prisoner proceeding pro se, filed a paper styled:

Motion to Chief Judge Denise Page Hood for Evidentiary Hearing in Connection to Plaintiff's Request for Rule 6(e) Investigation.

         As best as can be gleaned, Stanley is seeking the disclosure of state grand jury proceedings. The exhibits attached to his motion indicate he pursued similar relief in state court and was denied. It also appears that Stanley was convicted of drug offenses in state court in 2002 and is currently incarcerated based on those convictions.

         The Clerk's office designated it as a miscellaneous action and assigned the matter to the undersigned. As will be explained, Stanley is precluded from proceeding without prepayment of the filing fee and he has also been enjoined from filing papers without leave. Stanley did not pay the filing fee nor seek leave. Accordingly, the case will be dismissed.

         II.

         A.

         Because Stanley did not prepay the filing fee for this action. The Court therefore assumes that he wishes to proceed under 28 U.S.C. § 1915(b) without prepaying the filing fee. Ordinarily, a federal litigant who is too poor to pay court fees "may commence a civil action without prepaying fees or paying certain expenses." Coleman v. Tollefson, 135 S.Ct. 1759, 1761 (2015) (citing 28 U.S.C. § 1915). But, as the Supreme Court explained in Coleman,

a special "three strikes" provision prevents a court from affording in forma pauperis status where the litigant is a prisoner and he or she "has, on 3 or more prior occasions, while incarcerated . . ., 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."

Id. (quoting 28 U.S.C. § 1915(g)). An exception to this rule applies when "the prisoner is under imminent danger of serious physical injury." 28 U.S.C. § 1915(g).

         "[T]he three strikes rule is not an affirmative defense that must be raised in the pleadings." Harris v. New York, 607 F.3d 18, 23 (2d Cir. 2010). Therefore, "a district court can invoke § 1915(g) to dismiss a prisoner lawsuit even if the three strikes rule has not been raised by the defendant in the pleadings." Id.; see also Witzke v. Hiller, 966 F.Supp. 538, 539 (E.D. Mich. 1997) (dismissing the prisoner's complaint sua sponte under 28 U.S.C. § 1915(g)).

         At least three of Stanley's previous complaints have been summarily dismissed for failure to state a claim. See Stanley v. Collins, No. 04-71098 (E.D. Mich. 2004); Stanley v. Hand, 07-13114 (E.D. Mich. 2009); Stanley v. Liebson, 09-12202 (E.D. Mich. 2012). Furthermore, Stanley has not demonstrated that he was under imminent danger of serious physical injury when he filed this action. ...


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