Kemp v. Michigan Secretary of State et al

Filing 6

ORDER DENYING PLAINTIFF'S MOTION FOR WAIVER OF FEES AND COSTS; DENYING PLAINTIFF'S MOTION TO SUPPRESS USE OF PROPERTY AS EVIDENCE; SUMMARILY DISMISSING CASE Signed by District Judge Victoria A. Roberts. (CPin)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

WILLIAM FREDERICK KEMP, JR.,
Plaintiff,
CASE NO. 2:15-cv-14274
HONORABLE VICTORIA A. ROBERTS

v.
MICHIGAN SECRETARY OF STATE, et al.,
Defendants.
____________________________________/

ORDER DENYING PLAINTIFF’S
MOTION FOR WAIVER OF FEES AND COSTS (ECF #2),
DENYING PLAINTIFF’S MOTION TO SUPPRESS
USE OF PROPERTY AS EVIDENCE (ECF #4),
AND SUMMARILY DISMISSING THE COMPLAINT (ECF #1)
I. Introduction
William-Frederick Kemp, Jr., a state prisoner at the Gus Harrison Correctional
Facility in Adrian, Michigan, filed a pro se complaint under 42 U.S.C. § 1983 and a
motion to waive fees and costs. The complaint (ECF #1) and Plaintiff’s motion to
suppress use of property as evidence (ECF #4) appear to allege that state and county
officials violated his constitutional rights and treated him as a slave or as “goods” under
the Uniform Commercial Code during a criminal prosecution against him. Plaintiff
claims to be unlawfully held in prison and deprived of his property. He seeks
declaratory, injunctive, and monetary relief. For the reasons that follow, the Court
denies the pending motions and summarily dismisses the complaint.

II. Discussion
Plaintiff wants the Court to waive the fees and costs for this action. A federal
litigant who is too poor to pay court fees ordinarily “may commence a civil action without
prepaying fees or paying certain expenses.” Coleman v. Tollefson, 135 S. Ct. 1759,
1761 (2015) (citing 28 U.S.C. § 1915).
But a special “three strikes” provision prevents a court from affording in
forma pauperis status where the litigant is a prisoner and he or she “has,
on 3 or more prior occasions, while incarcerated . . . , 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.” § 1915(g)
Id.
An exception to this rule applies when “the prisoner is under imminent danger of
serious physical injury.” 28 U.S.C. § 1915(g). “The imminent danger exception is
essentially a pleading requirement subject to the ordinary principles of notice pleading.”
Vandiver v. Vasbinder, 416 F. App’x 560, 562 (6th Cir. 2011). “[T]o allege sufficiently
imminent danger, . . . ‘the threat or prison condition must be real and proximate and the
danger of serious physical injury must exist at the time the complaint is filed.’ ” Vandiver
v. Prison Health Servs., Inc., 727 F.3d 580, 585 (6th Cir. 2013) (quoting Ritter v. Kinder,
290 F. App’x 796, 797 (6th Cir. 2008)). “In addition to a temporal requirement, . . . the
allegations must be sufficient to allow a court to draw reasonable inferences that the
danger exists.” Id.
More than three of Plaintiff’s prior complaints were dismissed as frivolous or for
failure to state a claim. See Kemp v. Wayne County, No. 2:08-cv-13945 (E.D. Mich.
Mar. 23, 2009); Kemp v. United States of America, et al., No. 2:08-cv-12392 (E.D. Mich.
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Sept. 25, 2008); Kemp v. United States of America, et al., No. 2:05-cv-72160 (E.D.
Mich. Sept. 8, 2005); and Kemp v. Thomas, et al., No. 2:02-cv-00073 (W.D. Mich. May
17, 2002). In still another case, a judge in the Western District of Michigan informed
Plaintiff that he could not proceed in forma pauperis because he has three “strikes”
under 28 U.S.C. § 1915(g). See Kemp v. State of Michigan, et al., No. 1:15-cv-01184
(W.D. Mich. Dec. 2, 2015).
As a result of Plaintiff’s prior “strikes,” he may not proceed without prepayment of
the fees and costs for this action unless he was in “imminent danger of serious physical
injury” when he filed his complaint. 28 U.S.C. § 1915(g). He has not demonstrated that
he is in imminent danger of serious physical injury or that he was facing a real and
proximate threat of serious physical injury when he filed his complaint. Thus, Plaintiff
may not proceed without prepayment of the filing fee.
III. Conclusion
More than three of Plaintiff’s cases were dismissed as frivolous or for failure to
state a claim for which relief may be granted. Plaintiff does not fall within the exception
to § 1915(g) for prisoners who are in imminent danger of serious physical injury.
Therefore, the Court denies his motion to proceed without prepayment of fees and costs
(ECF #2) and summarily dismisses his complaint (ECF #1) without prejudice pursuant
to 28 U.S.C. § 1915(g). The Court denies as moot the motion to suppress use of
property as evidence (ECF #4). The Court also certifies that an appeal from this order
could not be taken in good faith. 28 U.S.C. § 1915(a)(3).

Dated: 1/8/2016

S/Victoria A. Roberts
VICTORIA A. ROBERTS
UNITED STATES DISTRICT JUDGE
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