Johnson v. Michigan Department of Corrections

Filing 4

ORDER denying pltf's application for leave to proceed without prepayment of the filing fee and dismissing the complaint. Signed by District Judge Nancy G. Edmunds. (CBet)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

CORIELLE JOHNSON,
Case Number: 2:16-cv-10973
HON. NANCY G. EDMUNDS

Plaintiff,
v.
MICHIGAN DEPARTMENT OF
CORRECTIONS,
Defendant.
/

ORDER DENYING PLAINTIFF’S APPLICATION FOR LEAVE
TO PROCEED WITHOUT PREPAYMENT OF THE FILING FEE
AND DISMISSING COMPLAINT
Michigan state prisoner Corielle Johnson has filed a pro se civil rights complaint
under 42 U.S.C. § 1983 and an application to proceed without prepayment of the filing
fee for this action. See 28 U.S.C. § 1915(a)(1). Plaintiff alleges that he has been denied
access to the courts and that prison officials have retaliated against him for filing lawsuits
and grievances. Plaintiff seeks monetary damages 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).
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 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);
Edwards v. Gaul, 40 F. App’x 970, 971 (6th Cir. 2002) (holding that district court
properly dismissed without prejudice a prisoner’s civil rights complaint barred by the
“three strikes” provision).
Plaintiff has filed 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 Johnson v. Tollefson, et al., Case No. 2:14-cv-86 (W.D.
Mich. Jan. 25, 2016); Johnson v. Niemi, et al., Case No. 2:15-cv-91 (W.D. Mich. Sept. 3,
2015); Johnson v. Lanala, et al., Case No. 2:15-cv-92 (W.D. Mich. Aug. 26, 2015).
Plaintiff also has received notice that he is a three-striker, having had a case dismissed
under 28 U.S.C. § 1915(g). See Johnson v. Jondreau, et al., Case No. 2:16-cv-20 (W.D.
Mich. March 4, 2016).
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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
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, 416 F. App’x 561 (6th Cir. Mar. 28, 2011).
Plaintiff’s complaint includes alleges the denial of access to the courts and
retaliation. The complaint is handwritten and difficult to read, but the Court finds no
claims indicating that Plaintiff is in 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.
S/ Nancy G. Edmunds
NANCY G. EDMUNDS
UNITED STATES DISTRICT JUDGE
Dated: April 4, 2016

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