Hebestreit v. Klee et al

Filing 4

OPINION and ORDER denying 2 Application to Proceed Without Prepayment of Fees and DISMISSING CASE Signed by District Judge George Caram Steeh. (MBea)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

CHARLES M. HEBESTREIT,
Plaintiff,
v.

CASE NO. 2:13-CV-11306
HONORABLE GEORGE CARAM STEEH

PAUL KLEE, ET AL,
Defendant.
/
OPINION AND ORDER DENYING PLAINTIFF’S APPLICATION
FOR LEAVE TO PROCEED WITHOUT PREPAYMENT OF THE
FILING FEE AND DISMISSING THE CIVIL RIGHTS COMPLAINT
Michigan state prisoner Charles Hebestreit has filed a pro se civil rights complaint under 42
U.S.C. § 1983 and an application to proceed without prepayment of fees or costs seeking to proceed
without prepayment of the $350.00 filing fee for this action. See 28 U.S.C. § 1915(a)(1). Plaintiff
names fourteen defendants. He seeks monetary damages and injunctive relief. Under the Prison
Litigation Reform Act (“PLRA”), Pub. L. No. 104-134, 110 Stat. 1321(1996), a prisoner is
prevented from proceeding in forma pauperis 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.
42 U.S.C. § 1915(g).
In short, this “three strikes” provision allows the Court to dismiss a case where the prisoner

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seeks to proceed in forma pauperis, if, on three or more previous occasions, a federal court has
dismissed the prisoner’s action because it was frivolous or malicious or failed to state a claim for
which relief may be granted. 28 U.S.C. § 1915(g) (1996); 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)” because the prisoner “must pay the filing fee at the time he initiates
the suit”).
Plaintiff has filed many more than three prior civil rights complaints which have been
dismissed as frivolous or for failure to state a claim upon which relief may be granted. See
Hebestreit v. Miller, No. 90-cv-40008 (E.D. Mich. January 29, 1990); Hebestreit v. Brown, et al,
No. 90-cv-73420 (E.D. Mich. April 17, 1992); Hebestreit v. Brown, et al, No. 92-cv-0036 (W.D.
Mich. June 2, 1992); and Hebestreit v. Wayne County Sheriff Dept., No. 03-CV-71152 (E.D. Mich.
April 23, 2003).
A plaintiff may maintain a civil action despite having had three or more civil actions
dismissed as frivolous if the prisoner is “under imminent danger of serious physical injury.” To
establish that his complaint falls within the statutory exception to the three strikes rule, a prisoner
must allege that he is under imminent danger at the time that he seeks to file his complaint and
proceed in forma pauperis. Vandiver v. Vasbinder, No. 08-2602, 416 F. App’x561 (6th Cir. Mar.
28, 2011). See also Malik v. McGinnis, 293 F.3d 559, 562 (2d Cir. 2002)(holding that imminent
danger exception requires that the danger exist at time complaint is filed); Ashley v. Dilworth, 147
F.3d 715, 717 (8th Cir. 1998) (plaintiff sufficiently alleged imminent danger of serious physical
injury where he claimed that he was placed near inmates on his enemy list and subject to ongoing

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danger); Banos v. O’Guin, 144 F.3d 883, 885 (5th Cir. 1998) (past body cavity searches failed to
establish imminent danger of serious physical injury). Plaintiff’s complaint does not claim that he
is under imminent danger of serious physical injury.
Accordingly, the Court DENIES Plaintiff’s application for leave to proceed without
prepayment of the filing fee. Additionally, the Court DISMISSES the complaint pursuant to 28
U.S.C. § 1915(g). This dismissal is without prejudice to Plaintiff filing a new complaint with
payment of the filing fee. SO ORDERED.
Dated: April 1, 2013
s/George Caram Steeh
GEORGE CARAM STEEH
UNITED STATES DISTRICT JUDGE
CERTIFICATE OF SERVICE
Copies of this Order were served upon attorneys of record on
April 1, 2013, by electronic and/or ordinary mail and also on
Charles Hebestreit #196481, Gus Harrison Correctional Facility,
2727 E. Beecher Street, Adrian, MI 49221.
s/Barbara Radke
Deputy Clerk

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