Howard v. Place
OPINION AND ORDER Denying IFP and DISMISSING CASE. Signed by District Judge Paul D. Borman. (DTof)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
Case Number 2:17-CV-13084
HONORABLE PAUL D. BORMAN
UNITED STATES DISTRICT JUDGE
OPINION AND ORDER DENYING APPLICATION TO PROCEED
WITHOUT PREPAYMENT OF FEES
AND COSTS AND DISMISSING COMPLAINT
This matter is before the Court on plaintiff’s pro se civil rights complaint filed
pursuant to 42 U.S.C. § 1983. Plaintiff is an inmate confined at the Baraga Maximum
Correctional Facility in Baraga, 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.
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), 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 review of federal court records indicates that the plaintiff has four 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
Howard v. United States, 2:14-CV-99 (W.D. Mich. Dec. 5, 2014); Howard v. Horton,
No. 2:14-CV-127, 2014 WL 3519110 (W.D. Mich. July 15, 2014); Howard v. United
States, No. 2:13-CV-340, 2014 WL 801423 (W.D. Mich. Feb. 28, 2014); Howard
v.Mich.Dep’t ofCorr. et al., No. 2:11-CV-12630 (E.D. Mich. Aug. 9, 2011).
In addition, plaintiff has twice been denied leave to proceed in forma pauperis
under 28 U.S.C. § 1915(g), the “three-strikes” rule, because of these frivolity
dismissals. See Howard v. Woods, et. al., No. 2:14-CV-126 (WD. Mich. Oct. 23,
2014); Howard v. Horton, 2:14-CV-182 (W.D. Mich. Oct. 1, 2014).
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 had at least four 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 was subsequently informed by federal district judges
on two different occasions that he was precluded from proceeding in forma pauperis
in these other civil rights actions pursuant to § 1915(g) because of these prior
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 four prior frivolity dismissals. Mulazim v. Michigan Dept. of
Corrections, 28 F. App’x. 470, 472 (6th Cir. 2002).
Plaintiff’s civil rights complaint is therefore subject to dismissal pursuant to §
1915(g). Plaintiff 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 plaintiff has had four 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, 805-806 (W.D. Tenn.
1999). The Court therefore refuses to certify that any appeal from this dismissal
would be in good faith.
IT IS HEREBY ORDERED that the 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). IT IS FURTHER ORDERED AND CERTIFIED
that any appeal taken by the plaintiff would not be done in good faith.
IT IS SO ORDERED.
s/Paul D. Borman
Paul D. Borman
United States District Judge
Dated: October 24, 2017
CERTIFICATE OF SERVICE
The undersigned certifies that a copy of the foregoing order was served upon each
attorney or party of record herein by electronic means or first class U.S. mail on October 24,
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