Holliday v. Detroit, City of et al

Filing 5

ORDER Denying 2 Application to Proceed In Forma Pauperis and Dismissing 1 Complaint Without Prejudice. Signed by District Judge Arthur J. Tarnow. (CPic)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

WILLIAM HOLLIDAY,
Case Number: 2:13-CV-15286
HONORABLE ARTHUR J. TARNOW

Plaintiff,
v.
CITY OF DETROIT, ET AL.,
Defendants.
/

ORDER DENYING PETITIONER’S APPLICATION TO PROCEED IN FORMA
PAUPERIS AND DISMISSING COMPLAINT WITHOUT PREJUDICE
Florida state prisoner William Holliday has filed a pro se civil rights complaint
under 42 U.S.C. § 1983. The complaint challenges the lawfulness of Plaintiff’s present
confinement and names as defendants the City of Detroit, a Detroit police officer, the City
of Pensacola, and the Escambia County Sheriff’s Department. Plaintiff seeks monetary
and injunctive relief. Plaintiff has requested that he be permitted to proceed in forma
pauperis in this case. See 28 U.S.C. § 1915(a)(1) (1996). For the reasons stated below,
the Court will deny Plaintiff leave to proceed in forma pauperis and will dismiss the
complaint pursuant to 28 U.S.C. § 1915(g).
Indigent prisoners may seek to bring a civil action without prepayment of the fees
and costs for the action. 28 U.S.C. § 1915(a)(2). A prisoner, however, may be barred
from proceeding in forma pauperis in a civil action under certain circumstances:

Holliday v City of Detroit, et al., No. 13-15286

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, this “three strikes” provision allows the Court to dismiss a case where the
prisoner 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 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 Holliday v.
Tomlinson, No. 4:10-cv-264 (N.D. Fla. Sept. 13, 2010) (imposing three-strikes bar and
citing previous actions that count as strikes).
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.” 28 U.S.C. § 1915(g). To establish that his complaint falls within the
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Holliday v City of Detroit, et al., No. 13-15286

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, 2011 WL 1105652, *2 (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 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 allegations that Defendants violated his rights under the Due Process Clause by
plotting with one another to have him wrongfully arrested and convicted do not fall
within the “imminent danger” exception of § 1915(g). See Gray v. Clerk, 2010 WL
553819, *1 (“Plaintiff’s claims of unlawful confinement do not remotely approach
allegations of ‘imminent danger of serious physical injury’”).

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Holliday v City of Detroit, et al., No. 13-15286

Accordingly, the Court DENIES Plaintiff’s application for leave to proceed in
forma pauperis. 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.

S/Arthur J. Tarnow
Arthur J. Tarnow
Senior United States District Judge
Dated: February 13, 2014
I hereby certify that a copy of the foregoing document was served upon parties/counsel of
record on February 13, 2014, by electronic and/or ordinary mail.
S/Catherine A. Pickles
Judicial Assistant

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