United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER DISMISSING COMPLAINT PURSUANT TO 28
U.S.C. § 1915(g)
GEORGE CARAM STEEH UNITED STATES DISTRICT JUDGE
Anthony Meeks' filed a pro se civil rights
complaint under 42 U.S.C. Â§ 1983. Plaintiff is a state
prisoner who is incarcerated at the Cotton Correctional
Facility in Jackson, Michigan. Upon review of plaintiff's
case and his litigation history in the federal courts, the
Court dismisses the civil rights complaint without prejudice
pursuant to 28 U.S.C. Â§ 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).
review of federal court records reveals that plaintiff had
two prior civil rights complaints that were dismissed by
federal courts for being frivolous, malicious, or for failing
to state a claim upon which relief could be granted. The
second of those dismissals was appealed by plaintiff to the
United States Court of Appeals for the Sixth Circuit, who
affirmed the dismissal. Meeks v. Woods, et. al., No.
2:16-cv-174, 2016 WL 6090761 (W.D. Mich. Oct. 19,
2016)(Quist, J.); Meeks v. McKee, et. al., No.
1:05-cv-00172, 2005 WL 1047550 (W.D. Mich. May 4,
2005)(Miles, J.); aff'd No. 05-1769 (6th Cir.
Dec. 6, 2005).
was subsequently denied leave to proceed in forma
pauperis under 28 U.S.C. § 1915(g), the
“three-strikes” rule, based on these prior
actions. Meeks v. Washington, No. 2:19-CV-10247,
2019 WL 670080 (E.D. Mich. Feb. 19, 2019).
has requested to proceed without prepayment of fees.
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.
federal court shall dismiss a case pursuant to 28 U.S.C.
§ 1915(g), 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 unless there is 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 for being frivolous, malicious, or
failing to state a claim upon which relief could be granted.
Plaintiff appealed the dismissal of his 2005 case to the
United States Court of Appeals for the Sixth Circuit, which
affirmed the dismissal, ruling that the district court had
correctly dismissed plaintiff's complaint because none of
plaintiff's issues stated a claim upon which relief could
be granted. Meeks v. McKee, et. al., No. 05-1769,
pp. 2-5 (6th Cir. Dec. 6, 2005).
appellate court's affirmance of a district court's
dismissal of a prisoner civil action counts as a separate
strike, for purposes of 28 U.S.C. § 1915(g), so long as
the appellate court implicated § 1915(g) reasons when
affirming the district court's dismissal. See Taylor
v. First Med. Mgmt., 508 Fed.Appx. 488, 494 (6th Cir.
2012). This includes cases where the appellate court finds a
prisoner's action to be frivolous but “erroneously
styles its dismissal as an affirmance.” Id.,
p. 495, n. 5. Other circuit courts have also held that a
district court's dismissal of a complaint for being
frivolous, malicious, or for failing to state a claim upon
which relief can be granted and the subsequent affirmance of
that dismissal on appeal count as two separate strikes under
§ 1915(g), if the appellate court based its decision on
the grounds contained in § 1915(g). See Chavis v.
Chappius, 618 F.3d 162, 167 (2d Cir. 2010); Jennings
v. Natrona County Det. Ctr. Med. Facility, 175 F.3d 775,
780 (10th Cir. 1999); Hains v. Washington, 131 F.3d
1248, 1250 (7th Cir. 1997)(per curiam); Henderson v.
Norris, 129 F.3d 481, 485 (8th Cir. 1997)(per curiam);
Adepegba v. Hammons, 103 F.3d 383, 388 (5th Cir.
United States Supreme Court has yet to explicitly hold that
an appeal from the dismissal of a civil rights case counts as
a separate strike, for purposes of 28 U.S.C. § 1915(g),
but that Court's language and reasoning on a similar
issue strongly suggests that a district court's dismissal
of a prisoner complaint for being frivolous, malicious, or
for failing to state a claim and a court of appeals'
subsequent affirmance of that dismissal should count as
separate strikes, for purposes of § 1915(g). In
Coleman v. Tollefson, 135 S.Ct. 1759 (2015), the
Supreme Court held that a district court's prior
dismissal of a prisoner complaint on a statutorily enumerated
ground counts as a strike even if the dismissal is the
subject of an appeal. Id. at 1763. The Supreme Court
rejected the notion that the prior dismissal does not count
as a strike while an appeal from that dismissal is pending.
Id. The Supreme Court repudiated the notion that the
language “prior occasion, ” in the context of 28
U.S.C. § 1915(g), included both a dismissal of a
complaint on an enumerated ground and any subsequent appeal.
Id. The Supreme Court observed,
“Linguistically speaking, we see nothing about the
phrase ‘prior occasions' [within the language of
§ 1915(g)] that would transform a dismissal into a
dismissal-plus-appellate-review. An ‘occasion' is
‘a particular occurrence,' a ‘happening,'
or an ‘incident.'” Id. (Quoting
Webster's Third New International Dictionary 1560 (3d ed.
1993)). The Supreme Court also observed that “The
in forma pauperis statute repeatedly treats the
trial and appellate stages of litigation as distinct.”
Id. The Supreme Court concluded that the screening
provisions for prisoner ...