United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER DENYING APPLICATION TO PROCEED
WITHOUT PREPAYMENT OF FEES AND COSTS AND DISMISSING
HONORABLE LAURIE J. MICHELSON UNITED STATES DISTRICT JUDGE
Donald Mallory is a prisoner in the custody of the Michigan
Department of Corrections. Upon review of Mallory’s
case and his litigation history in the federal courts, the
Court concludes that his case must be dismissed without
prejudice pursuant to 28 U.S.C. § 1915(g).
Prisoner Litigation Reform Act of 1995 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 the ability 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).
has not paid the $350.00 filing fee or the $ 50.00
administrative fee. Instead, Mallory asks to proceed without
prepayment of fees.
prisoner is not allowed to proceed without prepayment of fees
“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); see
also Thaddeus-X v. Blatter, 175 F.3d 378, 400 (6th Cir.
1999); Witzke v. Hiller, 966 F.Supp. 538, 540 (E.D.
Mich. 1997). 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.
review of federal court records indicates that Mallory has at
least three strikes and likely four.
One. In Mallory-Bey v. Mulvaney, the court
determined that “Plaintiff’s exhausted claims
against Defendant Hutchins fail to state a claim and will
therefore be dismissed pursuant to 28 U.S.C. §§
1915(e)(2) and 1915A(b), and 42 U.S.C. §
1997e(c).” No. 1:03-cv-00529, slip op. at 10 (W.D.
Mich. Feb. 27, 2004). Although some of the claims were also
dismissed without prejudice due to Mallory’s failure to
exhaust his administrative remedies, see Id . at 8,
“where a 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 should be counted as a strike
under 28 U.S.C. § 1915(g).” Pointer v.
Wilkinson, 502 F.3d 369, 377 (6th Cir. 2007).
Two. In Mallory v. Obama, et. al., No.
1:15-cv-1090, 2015 WL 7722034, at *2 (W.D. Mich. Nov. 30,
2015), the court determined “that Plaintiff’s
action will be dismissed as frivolous, pursuant to 28 U.S.C.
§§ 1915(e)(2) and 1915A(b), and 42 U.S.C. §
Three. In Mallory v. Sessions, the court
“agree[d] with the magistrate judge’s thorough
and well-reasoned analysis that Plaintiff’s complaint
must be dismissed pursuant to 28 U.S.C. §
1915(e)(2)(B)(i) and Rule 8.” No. 17-CV-12021, 2018 WL
3862792, at *1 (E.D. Mich. Aug. 14, 2018). This case counts
as a strike even though it was dismissed in part under Rule
12(b)(6). See Coleman v. Tollefson, 733 F.3d 175,
177 (6th Cir. 2013) (“Section 1915(g)’s language
was clearly modeled after Rule 12(b)(6), and dismissals
pursuant to that rule count as a strike.”).
Four. Mallory v. Sessions arguably counts as
two strikes (bringing the total to four). An 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) in affirming
the district court’s dismissal. See Taylor v. First
Med. Mgmt., 508 Fed.App’x 488, 494 (6th Cir.
2012); see also 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. 1996). This
includes cases in which the appellate court found a
prisoner’s action to be frivolous but
“erroneously styles its dismissal as an
affirmance.” Taylor, 508 Fed.App’x at
the United States Supreme Court has yet to explicitly hold
that an appeal from the dismissal of a civil rights case can
count as a separate strike, the 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 the subsequent affirmance of that dismissal by a court of
appeals should count as separate strikes, for purposes of 28
U.S.C. § 1915(g). In Coleman v. Tollefson, 135
S.Ct. 1759 (2015), 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. at
1763 (quoting Webster’s 3d New Int’l Dictionary
1560 (3d ed. 1993)). The Supreme Court also noted that
“The in forma pauperis statute repeatedly
treats the trial and appellate stages of litigation as
distinct.” Id. at 1763.
Mallory’s 2018 case, the Sixth Circuit Court of Appeals
denied Mallory permission to proceed in forma
pauperis on appeal, finding that the appeal would not be
in good faith because there would there was “no
arguable basis on which to challenge” the district
court’s decision to dismiss his action for being
frivolous. Mallory was ordered to pay the $505.00 appellate
filing fee. Mallory v. Whitaker, No. 18-2043 (6th
Cir. Dec. 28, 2018). (The appeal was ultimately dismissed
when Mallory failed to pay the filing fee. Mallory v.
Whitaker, No. 18-2043, 2019 WL 1153441 (6th Cir. Feb. 6,
2019).) As the Sixth Circuit apparently concluded that
Mallory’s appeal of Mallory v. Sessions was
frivolous, Mallory likely has a fourth strike within the
meaning of 28 U.S.C. § 1915(g). See Taylor, 508
Fed.App’x at 494–95 & n. 5.
to § 1915(g)’s exception to the three-strike rule,
Mallory has not alleged any facts which would establish that
he is in imminent danger of serious physical injury.
See (ECF No. 1); Gresham v. Meden, No.
18-1911, ___F.3d ___, 2019 WL 4458807, at *2 (6th Cir. Sept.
short, Mallory has at least three strikes and so his
complaint is subject to dismissal pursuant to § 1915(g).
Mallory 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.
Mallory’s in forma pauperis status is DENIED
and his complaint (ECF No. 1) is DISMISSED WITHOUT ...