Carlton v. Granholm et al

Filing 3

OPINION AND ORDER denying leave to proceed without prepayment of the filing fee and DISMISSING CASE. An appeal from this decision would be frivolous and cannot be taken in good faith. Signed by District Judge George Caram Steeh (MBea)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

EDWARD N. CARLTON, #113154,
Plaintiff,
CASE NO. 2:11-CV-15621
HONORABLE GEORGE CARAM STEEH

v.
JENNIFER GRANHOLM, et al.,
Defendants.
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OPINION AND ORDER DENYING LEAVE TO PROCEED WITHOUT
PREPAYMENT OF THE FILING FEE AND DISMISSING THE COMPLAINT
I.
Michigan prisoner Edward N. Carlton (“Plaintiff”) has filed a pro se civil rights
complaint pursuant to 42 U.S.C. § 1983 and other statutory provisions against numerous
state, county, and city officials. Plaintiff has not paid the $350.00 filing fee for this action,
but has filed an application seeking leave to proceed without prepayment of the filing fee.
See 28 U.S.C. § 1915(a)(1). In his complaint, Plaintiff challenges his state criminal
proceedings, alleges conspiracy, perjury, and RICO violations, and apparently seeks to
pursue a criminal action against the defendants. Having reviewed the matter, the Court
finds that Plaintiff is not eligible to proceed without prepayment of the filing fee for this
action and dismisses his complaint pursuant to 28 U.S.C. § 1915(g). The Court also finds
that an appeal from this decision would be frivolous and cannot be taken in good faith.
II.
Under the Prison Litigation Reform Act (“PLRA”), Pub. L. No. 104-134, 110 Stat.

1321 (1996), a prisoner may be precluded from proceeding without prepayment of the filing
fee in a civil action under certain circumstances. The statute states, in relevant part:
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). In short, the “three strikes” provision requires the Court to dismiss a
civil case where the prisoner seeks to proceed without prepayment of the filing fee if, on
three or more previous occasions, a court has dismissed the prisoner’s action because it
was frivolous or malicious or failed to state a claim upon which relief may be granted. Id.;
see also Dupree v. Palmer, 284 F.3d 1234, 1236 (11th Cir. 2002) (holding that “the proper
procedure is for the district court to dismiss the complaint without prejudice when it denies
the prisoner leave to proceed in forma pauperis pursuant to the provisions of § 1915(g)”).
The Court’s records reveal that Plaintiff is a prolific litigator in federal court. He has
filed more than three prior civil actions which have been dismissed as frivolous or for failure
to state a claim upon which relief may be granted. See, e.g., Carlton v. Baird, No.
4:02-CV-00100 (W.D. Mich. Jan. 15, 2003); Carlton v. Wingo, No 2:90-CV-71607 (E.D.
Mich. Oct. 15, 1990); Carlton v. Mann, No. 2:88-CV-72892 (E.D. Mich. Oct. 12, 1988);
Carlton v. Berg, No. 2:88-CV-72904 (E.D. Mich. Aug. 26, 1988); Carlton v. Wojniak, No.
2:88-CV-73105 (E.D. Mich. Aug. 30, 1988). Plaintiff has also previously been denied leave
to proceed without prepayment of the filing fee for having three strikes. See Carlton v.
Smith, et al., No. 1:04-CV-00708 (W.D. Mich. Dec. 13, 2004). Consequently, Plaintiff is a
“three-striker” who cannot proceed without prepayment of the filing fee for this action unless
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he demonstrates that he is “under imminent danger of serious physical injury.” 28 U.S.C.
§ 1915(g). He has made no such showing. He is thus not entitled to proceed without
prepayment of the filing fee for this action and his complaint must be dismissed.
III.
Based upon the foregoing analysis, the Court concludes that Plaintiff has filed more
than three previous lawsuits which have been dismissed as frivolous or for failure to state
a claim upon which relief may be granted and that he has failed to establish that he is under
imminent danger of serious physical injury so as to fall within the exception to the three
strikes provision of 28 U.S.C. § 1915(g). Accordingly, the Court DENIES Plaintiff leave to
proceed without prepayment of fees for this action and DISMISSES his 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 defendants or summarily
dismissed. Lastly, the Court concludes that any appeal from this decision would be
frivolous and cannot be taken in good faith. See 28 U.S.C. § 1915(a)(3); McGore v.
Wrigglesworth, 114 F.3d 601, 610-11 (6th Cir. 1997). This case is closed.
IT IS SO ORDERED.
Dated: January 3, 2012
S/George Caram Steeh
GEORGE CARAM STEEH
UNITED STATES DISTRICT JUDGE

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CERTIFICATE OF SERVICE
Copies of this Order were served upon attorneys of record on
January 3, 2012, by electronic and/or ordinary mail and also to
Edward Carlton at Richard A. Handlon Correctional Facility,
1728 Bluewater Highway, Ionia, MI 48846.
S/Josephine Chaffee
Deputy Clerk

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