Stevens v. Triplett

Filing 4

OPINION AND ORDER DISMISSING COMPLAINT WITHOUT PREJUDICE PURSUANT TO 28 U.S.C. § 1915(g) Signed by District Judge Gershwin A. Drain. (Bankston, T)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
ROLAND STEVENS
Plaintiff,
CASE NO. 2:14-CV-11419
HONORABLE GERSHWIN A. DRAIN
UNITED STATES DISTRICT JUDGE

v.
REGINA TRIPLETT,

Defendant,
__________________________________________/
OPINION AND ORDER DISMISSING COMPLAINT WITHOUT PREJUDICE
PURSUANT TO 28 U.S.C. § 1915(g)
This matter is before the Court on Plaintiff Roland Stevens’ pro se civil rights
complaint filed pursuant to 42 U.S.C. § 1983. Mr. Stevens is a state prisoner who
is currently incarcerated at the Saginaw Correctional Facility in Freeland, Michigan.
Upon review of plaintiff’s case and his litigation history in the federal courts, this
Court concludes that his civil rights complaint must be dismissed without prejudice
pursuant to 28 U.S.C. § 1915(g).
I. Background
Title 28 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 ....” 28
U.S.C. § 1914(a); see also Owens v. Keeling, 461 F. 3d 763, 773 (6th Cir. 2006).
Mr. Stevens failed to provide the $350.00 filing fee when he filed his complaint. The
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Prison Litigation Reform Act of 1996 (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)(as amended); 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), does provide prisoners the opportunity to
make a “downpayment” of a partial filing fee and pay the remainder in installments.
See Miller v. Campbell, 108 F. Supp. 2d 960, 962 (W.D. Tenn. 2000).
A search of federal court records indicates that Mr. Stevens has at least three
prior civil rights complaints that have been dismissed by federal courts for being
frivolous, malicious, or for failing to state a claim upon which relief could be granted.
See Stevens v. Leithauser, No. 2:14-CV-11132, 2014 WL 1260149 (E.D. Mich.
March 26, 2014); Stevens v. Glanda, No. 14-10905 (E.D. Mich. March 10, 2014);
Stevens v. Michigan Dep’t of Corr., No. 2:13-CV-354; 2013 U.S. Dist. LEXIS 169403
(W.D. Mich. December 2, 2013).
II. Discussion
Under the Prison Litigation Reform Act of 1996 (“PLRA”), Pub.L.No. 104-134,
110 Stat. 1321 (April 26, 1996), a federal court may dismiss a case if, on 3 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. See 28 U.S.C. § 1915(g) (1996); 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
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three strikes provision of the PLRA prohibits a prisoner, who has had three prior
suits dismissed for being frivolous, from proceeding in forma pauperis in a civil rights
suit absent an allegation that the prisoner is in imminent danger of serious physical
injury. See 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. Moreover, 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). Green v. Nottingham, 90 F. 3d 415, 418 (10th
Cir. 1996); Anderson v. Sundquist, 1 F. Supp. 2d 828, 830 (W.D. Tenn. 1998).
Mr. Stevens has at least three prior civil rights complaints which were
dismissed for being frivolous, malicious, or failing to state a claim upon which relief
could be granted and thus his complaint is subject to dismissal pursuant to §
1915(g). Although Mr. Stevens’ lawsuit does not involve prison conditions but
instead involves claims of ineffective assistance of counsel and malpractice towards
his criminal defense attorney, there is no case authority which establishes that §
1915(g) applies only to lawsuits which involve prison conditions. See e.g. Peoples
v. Doolan, 23 F. App’x 388, 389 (6th Cir. 2001)(pro se prisoner, who sued police
officer and city under § 1983 concerning a prior arrest could have his in forma
pauperis status revoked, where at least three prior civil actions filed by him were
dismissed as frivolous, and prisoner cited nothing which would exclude his claim
from the three strikes provision). The provisions of §1915(g) are therefore applicable
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to Mr. Stevens’ case.
Additionally, Mr. Stevens 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), which prohibits him from
proceeding in forma pauperis in light of his three prior frivolity dismissals. Mulazim
v. Michigan Dep’t of Corr., 28 F. App’x 470, 472 (6th Cir. 2002).
Mr. Stevens’ civil rights complaint is therefore subject to dismissal pursuant
to § 1915(g). Mr. Stevens 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.
Since Mr. Stevens has had at least three prior cases dismissed against him
for being frivolous, malicious, or failing to state a claim, § 1915(g) bars him from
appealing in forma pauperis. See Drummer v. Luttrell, 75 F. Supp. 2d 796, 805-06
(W.D. Tenn. 1999). The Court therefore declines to certify that any appeal from this
dismissal would be in good faith.
III. ORDER
IT IS HEREBY ORDERED that Plaintiff Roland Stevens’ in forma pauperis
status is DENIED and the complaint [dkt # 1] is DISMISSED WITHOUT PREJUDICE
pursuant to 28 U.S.C. § 1915(g).
IT IS FURTHER ORDERED AND CERTIFIED that any appeal taken by Mr.
Stevens would not be done in good faith.
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SO ORDERED.
/s/Gershwin A Drain
HON. GERSHWIN A. DRAIN
UNITED STATES DISTRICT COURT
DATED: April 21, 2014

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