United States District Court, W.D. Michigan, Southern Division
OPINION DENYING LEAVE TO PROCEED IN FORMA PAUPERIS -
J. Jonker, Chief United States District Judge.
a civil rights action brought by a state prisoner under 42
U.S.C. § 1983. Plaintiff seeks leave to proceed in
forma pauperis. Because Plaintiff has filed at least
three lawsuits that were dismissed as frivolous, malicious or
for failure to state a claim, he is barred from proceeding
in forma pauperis under 28 U.S.C. § 1915(g).
The Court will order Plaintiff to pay the $400.00 civil
action filing fee applicable to those not permitted to
proceed in forma pauperis. This fee must be paid
within twenty-eight (28) days of this opinion and
accompanying order. If Plaintiff fails to pay the fee, the
Court will order that this case be dismissed without
prejudice. Even if the case is dismissed, Plaintiff must pay
the $400.00 filing fee in accordance with In re
Alea, 286 F.3d 378, 380-81 (6th Cir. 2002).
Prison Litigation Reform Act (PLRA), Pub. L. No. 104-134, 110
Stat. 1321 (1996), which was enacted on April 26, 1996,
amended the procedural rules governing a prisoner's
request for the privilege of proceeding in forma
pauperis. As the Sixth Circuit has stated, the PLRA was
“aimed at the skyrocketing numbers of claims filed by
prisoners-many of which are meritless-and the corresponding
burden those filings have placed on the federal
courts.” Hampton v. Hobbs, 106 F.3d
1281, 1286 (6th Cir. 1997). For that reason, Congress created
economic incentives to prompt a prisoner to “stop and
think” before filing a complaint. Id. For
example, a prisoner is liable for the civil action filing
fee, and if the prisoner qualifies to proceed in
forma pauperis, the prisoner may pay the fee
through partial payments as outlined in 28 U.S.C. §
1915(b). The constitutionality of the fee requirements of the
PLRA has been upheld by the Sixth Circuit. Id. at
addition, another provision reinforces the “stop and
think” aspect of the PLRA by preventing a prisoner from
proceeding in forma pauperis when the prisoner
repeatedly files meritless lawsuits. Known as the
“three-strikes” rule, the provision states:
In no event shall a prisoner bring a civil action or appeal a
judgment in a civil action or proceeding under [the section
governing proceedings in forma pauperis] 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). The statutory restriction
“[i]n no event, ” found in § 1915(g), is
express and unequivocal. The statute does allow an exception
for a prisoner who is “under imminent danger of serious
physical injury.” The Sixth Circuit has upheld the
constitutionality of the three-strikes rule against arguments
that it violates equal protection, the right of access to the
courts, and due process, and that it constitutes a bill of
attainder and is ex post facto legislation.
Wilson v. Yaklich, 148 F.3d 596, 604-06 (6th Cir.
has been an active litigant in the federal courts in
Michigan. In more than three of Plaintiff's lawsuits, the
Court entered dismissals on the grounds that the cases were
frivolous, malicious, and/or failed to state a claim. See
Wells v. Wagner, 1:93-cv-790 (W.D. Mich. Oct. 25, 1993);
Wells v. Pitcher, 1:94-cv-63 (W.D. Mich. May 4,
1994); Wells v. Grundy et al., 1:95-cv-780 (W.D.
Mich. June 10, 1996); and Wells v. Sherman et al.,
No. 2:00-cv-215 (W.D. Mich. Jan. 9, 2001). Although two of
the dismissals were entered before enactment of the PLRA on
April 26, 1996, the dismissals nevertheless count as strikes.
See Wilson, 148 F.3d at 604. Plaintiff was well
aware of his strikes and the statutory bar to proceeding
in forma pauperis because this Court denied
Plaintiff leave to proceed in forma pauperis
previously in Wells v. Smead et al, No. 1:08-cv-1220
(W.D. Mich. Jan. 26, 2009).
allegations do not fall within the “imminent
danger” exception to the three-strikes rule. 28 U.S.C.
§ 1915(g). Plaintiffs claims are based on
Defendants' retaliatory conduct; there are no claims of
physical injury at all.
Plaintiff filed his complaint, he recognized that his request
to proceed in forma pauperis would be barred by the
three-strikes rule. He filed a brief (ECF No. 5) challenging
the constitutionality of that rule. Plaintiff raises the same
arguments that have been previously rejected by the Sixth
Circuit Court of Appeals. Wilson, 148 F.3d at
§ 1915(g) prohibits Plaintiff from proceeding in
forma pauperis in this action. Plaintiffs motion to
proceed in forma pauperis will be denied. Plaintiff
has twenty-eight (28) days from the date of entry of this
order to pay the entire civil action filing fee, which is
$400.00. When Plaintiff pays his filing fee, the Court will
screen his complaint as required by 28 U.S.C. § 1915A
and 42 U.S.C. § 1997e(c). If Plaintiff does not pay the
filing fee within the 28-day ...