Smith et al V. Washington et al

Filing 13

ORDER REVOKING PLAINTIFF'S LEAVE TO PROCEED WITHOUT PREPAYMENT OF THE FILING FEE AND DISMISSING CASE Signed by District Judge Victoria A. Roberts. (CPin)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
DERRICK LEE SMITH, et
al.,
Case No. 2:18-cv-10736
Plaintiffs,
Honorable Victoria A. Roberts
v.
HEIDI WASHINGTON, et al,
Defendants.
_______________________________/
ORDER REVOKING PLAINTIFF SMITH’S LEAVE TO PROCEED
WITHOUT PREPAYMENT OF THE FILING FEE AND DISMISSING
COMPLAINT
Derrick Lee Smith, a state inmate, along with George Preston, Kathy
Preston, James Preston, Martin Preston, and Rachel Preston (“Plaintiffs”), all of
whom are proceeding without the assistance of counsel, filed a civil rights
complaint under 42 U.S.C. § 1983. Smith, without the other Plaintiffs, filed an
application to proceed in forma pauperis, which the Court granted on April 16,
2018. See 28 U.S.C. § 1915(a)(1) (1996). For the reasons stated below, the
Court will now 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).
Smith has filed more than 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 Smith v. Wayne Cnty.
Prosecutor’s Office, et al., No. 2:09-cv-12287 (E.D. Mich. 2009); Smith v.
Ludwick, 2:09-cv-14936 (E.D. Mich. 2005); Smith v. Vasbinder, 2:05-cv-72557
(E.D. Mich. 2005); Smith v. Sherry, No. 2:06-cv-00234 (W.D. Mich. 2006); see
also Smith, et al. v. Michigan Dep’t of Corr., No. 2:12-cv-12788 (E.D. Mich. 2012)
(dismissed pursuant to the three-strikes rule of the PLRA).

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). Smith’s complaint raises claims that prison personnel have
tampered with the mail. He fails to allege any facts to establish that he is in
imminent danger of physical injury. See, e.g., Harris v. Nink, No. 2:13-cv-304,
2013 WL 4052872, at *2 (S.D. Ohio Aug. 9, 2013).
Accordingly, upon consideration, the Court hereby revokes its grant of
Plaintiff Smith’s application for leave to proceed without prepayment of the filing
fee and DENIES the application. The Court DISMISSES the complaint pursuant
to 28 U.S.C. § 1915(g). This dismissal is without prejudice to Plaintiffs filing a
new complaint with payment of the filing fee.
IT IS SO ORDERED.

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

Dated: June 11, 2018
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