Jones v. Wayne, County of
Filing
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MEMORANDUM OPINION and ORDER Denying 2 Application to Proceed Without Prepaying Fees or Costs and Dismissing 1 Complaint Without Prejudice. Signed by District Judge Arthur J. Tarnow. (CPic)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
ANTHONY JONES,
Plaintiff,
v.
Case No. 2:16-CV-13748
Honorable Arthur J. Tarnow
United States District Judge
WAYNE COUNTY,
Defendant,
_________________________________/
OPINION AND ORDER DENYING APPLICATION TO PROCEED WITHOUT
PREPAYMENT OF FEES AND COSTS AND DISMISSING COMPLAINT
WITHOUT PREJUDICE
This matter is before the Court on the plaintiff Anthony Jones’ pro se civil
rights complaint filed pursuant to 42 U.S.C. § 1983. Plaintiff is an inmate
confined at the Gus Harrison Correctional Facility in Adrian, Michigan. Upon
review of plaintiff’s case and his litigation history in the federal courts, this Court
concludes that his case must be dismissed without prejudice pursuant to 28
U.S.C. § 1915(g).
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 ....” See also Owens v. Keeling, 461 F. 3d 763, 773 (6th Cir. 2006). Plaintiff
failed to provide the $350.00 filing fee, plus a $ 50.00 administrative fee when he
filed his complaint.
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The Prisoner Litigation Reform Act of 1995 (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), provides
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 review of federal court records indicates that plaintiff has at least eleven
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 Jones v. Bush, et. al., No. 2:06-cv-66 (W.D. Mich. Apr. 11, 2006);
Jones v. McGinnis, No. 96-cv-34 (W.D. Mich. Apr. 25, 1996); Jones v. McGinnis,
No. 95-cv-550 (W.D. Mich. Oct. 3, 1995); Jones v. Hinds, No. 95-cv-113 (W.D.
Mich. July 5, 1995); Jones v. Caruso, No. 95-cv-60 (W.D. Mich. Oct. 11, 1995);
Jones v. MDOC, No. 94-cv-194 (W.D. Mich. Feb. 10, 1995); Jones v. MDOC Psychologist Services, No. 94-cv-193 (W.D. Mich. Feb. 6, 1995); Jones v. MDOC
Hearings Division, No. 94-cv-192 (W.D. Mich. Feb. 8, 1995); Jones v. Alger, No.
93-cv-00057 (W.D. Mich. Mar. 26, 1993); Jones v. Chartrand, No. 92-cv-00219
(W.D. Mich. Dec. 28, 1992); Jones v. Stine, No. 92-cv-00204 (W.D. Mich. Oct. 22,
1992).
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In addition, plaintiff has twice been denied leave to proceed in forma
pauperis under 28 U.S.C. § 1915(g), the “three-strikes” rule, based on these prior
dismissals. See Jones v. Sherry, et. al., U.S.D.C. No. 2:06-cv-00182 (W.D. Mich.
Dec. 12, 2006); Jones v. City of Detroit, No. 03-cv-74579 (E.D. Mich. Dec. 1,
2003).
Under the PLRA, 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 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.
Plaintiff has at least eleven prior civil rights complaints which were
dismissed for being frivolous, malicious, or failing to state a claim upon which
relief could be granted. In addition, plaintiff has subsequently been informed at
least twice by other judges that he was precluded from proceeding in forma
pauperis in these other civil rights actions pursuant to § 1915(g) because of these
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prior dismissals.
Moreover, plaintiff 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 eleven prior frivolity dismissals.
Mulazim v. Michigan Dept. of Corrections, 28 F. App’x. 470, 472 (6th Cir. 2002).
Although plaintiff alleges in his lawsuit that the Wayne County Prosecutor falsely
prosecuted him for several criminal charges for which he was acquitted, in order
to come within the “imminent danger” exception contained in 28 U.S.C.§ 1915(g),
a prisoner must show that “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.” Rittner v. Kinder, 290 F. App’x. 796, 797 (6th Cir. 2008).
Assertions of past danger will not satisfy the imminent danger exception. See
Pointer v. Wilkinson, 502 F.3d 369, 371, n. 1 (6th Cir. 2007); Rittner, 290 F.
App’x. at 797. The imminent danger exception to the “three strikes” provision of §
1915(g) requires that the imminent danger be contemporaneous with the
complaint's filing. See Vandiver v. Vasbinder, 416 F. App’x. 560, 562 (6th Cir.
2011). Plaintiff’s allegations fail to show that there is any imminent danger that is
contemporaneous with the filing of this complaint.
Plaintiff’s civil rights complaint is therefore subject to dismissal pursuant to
§ 1915(g). Plaintiff may, however, resume any of the claims dismissed under §
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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.
ORDER
IT IS HEREBY ORDERED that plaintiff’s in forma pauperis status is
DENIED and the complaint [Dkt. # 1] is DISMISSED WITHOUT PREJUDICE
pursuant to 28 U.S.C. § 1915(g).
S/Arthur J. Tarnow
Arthur J. Tarnow
Senior United States District Judge
Dated: November 1, 2016
I hereby certify that a copy of the foregoing document was served upon parties/counsel of
record on November 1, 2016, by electronic and/or ordinary mail.
S/Catherine A. Pickles
Judicial Assistant
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