United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER DISMISSING PLAINTIFF'S
COMPLAINT WITHOUT PREJUDICE AND CERTIFYING APPEAL WOULD NOT
BE TAKEN IN GOOD FAITH
H. CLELAND, UNITED STATES DISTRICT JUDGE.
McGore (“Plaintiff”) incarcerated at the Baraga
Maximum Correctional Facility in Baraga, Michigan, filed a
complaint for declaratory judgment against the nine members
of the United States Supreme Court. (ECF No. 1.) Upon review
of Plaintiff's case and his litigation history in federal
court, the court concludes that his complaint must be
dismissed without prejudice pursuant to 28 U.S.C. §
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 Prison 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); 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. Hampton v. Hobbs,
106 F.3d 1281, 1284-85 (6th Cir. 1997); Patts v.
Block, No. 06-CV-12389, 2006 WL 2786957, at *1 (E.D.
Mich. Sep. 26, 2006). Because Plaintiff did not submit the
necessary filing fee for a civil action, the court will
construe his complaint as a request to proceed in forma
pauperis. Szymanski v. U.S. Marshall, No.
14-CV-10305, 2014 WL 1308821, at * 1 (E.D. Mich. Mar. 28,
2014); Corrion v. State Treasurer, No.
2:12-CV-15101, 2012 WL 5990119 (E.D. Mich. Nov. 30, 2012).
has had at least eight prior cases that were dismissed for
being frivolous, malicious, or for failing to state a claim
upon which relief can be granted. McGore v. Hudson,
No. 1:98-cv-10080 (E.D. Mich. June 2, 1998); McGore v.
Hunter, No. 2:96-cv-74326 (E.D. Mich. Oct. 15, 1996);
McGore v. Hunter, No. 2:96-cv-74327 (E.D. Mich. Feb.
10, 1997); McGore v. Jones, No. 2:96-cv-74614 (E.D.
Mich. Nov. 8, 1996); McGore v. Michigan Supreme Court
Judges, No. 1:94-cv-517 (W.D. Mich. Jan. 25, 1995);
McGore v. Nardi, No. 2:93-cv-137 (W.D. Mich. Aug. 2,
1993); McGore v. Stine, No. 2:93-cv-112 (W.D. Mich.
July 26, 1993); McGore v. Stine, No. 2:93-cv-77
(W.D. Mich. Apr. 30, 1993).
addition, Plaintiff has been previously denied leave to
proceed in forma pauperis under 28 U.S.C. §
1915(g), the “three-strikes” rule, because of
these frivolity dismissals. McGore v. Michigan State
Police, No. 2:19-CV-228, 2019 WL 6522144 (W.D. Mich.
Dec. 4, 2019); McGore v. Schuette, No. 2:18-CV-103,
2018 WL 577320 (W.D. Mich. Nov. 2, 2018); McGore v.
Shenk, No. CV 17-13320, 2017 WL 11473286 (E.D. Mich.
Nov. 16, 2017); McGore v. Trinity Food Grp., No.
2:17-CV-13135, 2017 WL 4348844 (E.D. Mich. Sept. 29, 2017);
McGore v. United States Supreme Court, et. al., No.
14-14176 (E.D. Mich. Jan. 8, 2015); McGore v. Lutz,
No. 2:09-CV-13031, 2009 WL 2959874 (E.D. Mich. Sept. 11,
U.S.C. § 1915(g) states:
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 three 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). 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. Mulazim v. Mich. Dept. of
Corr., 28 Fed. App'x 470, 472 (6th Cir. 2002);
Clemons v. Young, 240 F.Supp.2d 639, 641 (E.D. Mich.
2003). 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). Taylor v. United States,
161 Fed. App'x. 483, 485-86 (6th Cir. 2005).
has had at least eight prior civil rights complaints which
were dismissed for being frivolous, malicious, or failing to
state a claim upon which relief could be granted. The fact
that most, if not all, of Plaintiff's cases were
dismissed prior to the enactment of the PLRA does not mean
that they cannot be used to deny Plaintiff permission to
proceed without prepayment of fees or costs.
Mulazim, 28 Fed. App'x at 472. Dismissals of
prior actions entered prior to the effective date of the PLRA
may be counted towards the three strikes allowed inmates
under the PLRA to preclude an inmate from proceeding in
forma pauperis in a civil action. Id.
has not alleged 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). Mulazim, 28 Fed. App'x at
472. Plaintiff's civil rights complaint is therefore
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.
Plaintiff has had eight prior cases dismissed against him for
being frivolous, malicious, or failing to state a claim,
§ 1915(g) bars him from appealing in forma
pauperis. The court therefore refuses to certify that an
appeal from this dismissal would be in good faith. 28 U.S.C.
§ 1915(a)(3); Coppedge v. United States, 369
U.S. 438, 444-45 (1962).