Collins v. Collins

Filing 6

MEMORANDUM OPINION and ORDER denying 2 MOTION U.S. Marshal to serve complaint on named defendant dismissing Plaintiff's 1 Complaint; denying Plaintiff's request for leave to proceed without prepayment of the filing fee. The Court concludes that an appeal from this order would be frivolous and therefore, cannot be taken in good faith. Signed by District Judge Paul D Borman. (PMil)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION

EARLAND J. COLLINS, Plaintiff, v. CARL L. COLLINS III, Defendant.
/ OPINION AND ORDER DENYING LEAVE TO PROCEED WITHOUT PREPAYMENT OF THE FILING FEE, DISMISSING COMPLAINT, AND DENYING MOTION FOR U.S. MARSHAL TO SERVE COMPLAINT This matter is before the Court on Plaintiff's pro se civil rights complaint filed pursuant to 42 U.S.C. § 1983, as well as his motion for the U.S. Marshal to serve the complaint upon the defendant. Plaintiff seeks leave to proceed without prepayment of the filing fee for this action. See 28 U.S.C. § 1915(a)(1). On September 14, 2009, the Court issued an order requiring Plaintiff to correct a filing deficiency and to show cause why his complaint should not be dismissed pursuant to the "three strikes" provision of 28 U.S.C. § 1915(g). On October 1, 2009, Plaintiff submitted a response to the Court's order consisting of a trust account statement. Plaintiff did not submit the

CASE NO. 2:09-CV-13535 HONORABLE PAUL D. BORMAN

requested affidavit of indigence with an authorization to withdraw funds from his prison account
nor did he respond to the show cause portion of the Court's order. Plaintiff has failed to correct the filing deficiency in this case. Moreover, under the Prison Litigation Reform Act ("PLRA"), the Court may dismiss a case if, on three (3) or more previous occasions, a federal court has dismissed the incarcerated plaintiff's action because it was frivolous

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or malicious or failed to state a claim upon which relief may be granted. See 28 U.S.C. § 1915(g). The Court's database reveals that Plaintiff has filed at least three (3) prior cases in federal court which have been dismissed as frivolous or for failure to state a claim upon which relief may be granted. See:

Case No. 08-CV-14881 09-CV-11785 09-CV-12315

Defendant(s) Wayne Co. Pros.

Dismissal Date 12/22/2008

U.S. District Judge Paul D. Borman Nancy G. Edmunds Nancy G. Edmunds

Warren Police Dept. 06/04/2009 Frank Murphy Hall 06/22/2009

Plaintiff has not challenged these dismissals in response to the Court's show cause order and his complaint concerns perceived misconduct by legal counsel. He neither alleges nor establishes that he "is under imminent danger of serious physical injury" so as to fall within the exception to the three strikes provision set forth in 28 U.S.C. § 1915(g). Plaintiff has thus failed to establish that he should be allowed to proceed on his complaint in forma pauperis despite the fact that he has had more than three prior lawsuits dismissed as frivolous or for failure to state a claim upon which relief may be granted. Accordingly, the Court DENIES Plaintiff's request for leave to proceed without prepayment of the filing fee. Plaintiff is not authorized to proceed before this Court in forma pauperis pursuant to 28 U.S.C. § 1915(g). Additionally, the Court DISMISSES Plaintiff's complaint pursuant to 28 U.S.C. § 1915(g). This dismissal is without prejudice to the filing of a new complaint with payment of the $350.00 filing fee. The Court notes that any such complaint will be reviewed to determine whether it should be served upon the defendant or summarily dismissed under 28 U.S.C. § 1915A(b), which requires the Court to dismiss a complaint brought against governmental entities,

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officers, and employees if the complaint is "frivolous, malicious, or fails to state a claim upon which relief may be granted." Given this determination, the Court also DENIES Plaintiff's motion for the U.S. Marshal to serve the complaint upon the defendant. Lastly, the Court concludes that an appeal from this order would be frivolous and, therefore, cannot be taken in good faith. See 28 U.S.C. § 1915(a)(3); see also McGore v. Wrigglesworth, 114 F.3d 601, 610-11 (6th Cir. 1997). IT IS SO ORDERED.

s/Paul D. Borman PAUL D. BORMAN UNITED STATES DISTRICT JUDGE Dated: October 30, 2009 CERTIFICATE OF SERVICE Copies of this Order were served on the attorneys of record by electronic means or U.S. Mail on October 30, 2009. s/Denise Goodine Case Manager

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