Smith et al V. Washington et al

Filing 19

ORDER granting 15 Motion to Amend/Correct; finding as moot 17 Motion to Reopen 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 GRANTING PLAINTIFFS’ MOTION TO ALTER OR AMEND (ECF NO.
15), DENYING AS MOOT PLAINTIFFS’ MOTION TO REINSTATE THE CASE
(ECF NO. 17), AND GRANTING PLAINTIFFS 30 DAYS TO FILE AN
AMENDED COMPLAINT
I.

Background
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 (“IFP”). See 28 U.S.C. § 1915(a)(1)
(1996). On June 11, 2018, the Court denied the application to proceed IFP and
dismissed the case pursuant to 28 U.S.C. § 1915(g) because Mr. Smith had filed
more than three prior civil rights complaints that had been dismissed by federal
courts for being frivolous, malicious, or for failing to state a claim upon which
relief could be granted. (ECF No. 13.)

This matter is before the Court for consideration of Plaintiffs’ motion to alter
or amend the Court’s June 11, 2018 order (ECF No. 15) and Plaintiffs’ motion to
reinstate the case based on having fully paid the filing fee (ECF No. 17). For the
reasons stated below, the motion to alter judgment is GRANTED and the motion
to reinstate case is DENIED AS MOOT.
II.

Analysis
A.

Motion to Alter or Amend Judgment

Mr. Smith first asks the Court to alter its judgment pursuant to Rule 59 of
the Federal Rules of Civil Procedure for two reasons: 1) he subsequently fully
paid the filing fee; and 2) the Court improperly counted habeas corpus dismissals
in its analysis. As to Mr. Smith’s second argument, although the Court did list
habeas corpus cases that had been dismissed, he is still barred by the threestrikes rule of the PLRA. See Smith, et al. v. Michigan Dep’t of Corr., No. 2:12cv-12788 (E.D. Mich. 2012) (dismissing Mr. Smith’s case pursuant to the threestrikes rule of the PLRA); Smith v. Wayne Cnty. Prosecutor’s Office, et al., No.
2:09-cv-12287 (E.D. Mich. 2009); Smith v. Ludwick, No. 2:09-cv-14936 (E.D.
Mich. 2005). Thus, his argument is without merit.
As to his first argument however, this Court dismissed the instant matter
without prejudice to payment of the entire filing fee in full. As that has now been
done (ECF No. 14), the Court will reinstate the case. As such, Mr. Smith’s
motion is GRANTED and the case will be re-opened on the Court’s docket. (ECF
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No. 15.) As such, Plaintiff’s related motion to reinstate case based on having
fully paid the filing fee is DENIED AS MOOT. (ECF No. 17.)
B.

Screening Pursuant to 28 U.S.C. § 1915

The Prison Litigation Reform Act of 1996 requires federal district courts to
screen a prisoner’s complaint and to dismiss the complaint or any portion of it if
the allegations are frivolous, malicious, fail to state a claim for which relief can be
granted, or seek monetary relief from a defendant who is immune from such
relief. Flanory v. Bonn, 604 F.3d 249, 252 (6th Cir. 2010) (citing 28 U.S.C. §§
1915(e) and 1915A and 42 U.S.C. § 1997e); Smith v. Campbell, 250 F.3d 1032,
1036 (6th Cir. 2001) (citing 28 U.S.C. §§ 1915(e)(2) and 1915A). “District courts
are required to screen all civil cases brought by prisoners, regardless of whether
the inmate paid the full filing fee, is a pauper, is pro se, or is represented by
counsel, as the statute does not differentiate between civil actions brought by
prisoners.” In re Prison Litigation Reform Act, 105 F.3d 1131, 1134 (6th Cir.
1997).
Plaintiff prepaid the filing fee for this action, and courts may not summarily
dismiss a prisoner’s fee-paid complaint under 28 U.S.C. § 1915(e)(2) because
that section applies only to complaints filed in forma pauperis. Benson v.
O’Brian, 179 F.3d 1014, 1015-17 (6th Cir. 1999). Benson, however, does not
prohibit federal courts from screening a prisoner’s fee-paid civil rights complaint

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against government officials under §1915A. Hyland v. Clinton, 3 F. App’x 478,
478-79 (6th Cir. 2001). As the Sixth Circuit explains:
The requirements of § 1915(e)(2) overlap the criteria of § 1915A.
Section 1915A is restricted to prisoners who sue government entities,
officers, or employees. In contrast, § 1915(e)(2) is neither restricted
to actions brought by prisoners, nor to cases involving government
defendants. Further, § 1915A is applicable at the initial stage of the
litigation. Section § 1915(e)(2) is applicable throughout the entire
litigation process.
In re Prison Litigation Reform Act, 105 F.3d at 1134. Federal district courts also
“may, at any time, sua sponte dismiss a complaint for lack of subject matter
jurisdiction pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure
when the allegations of a complaint are totally implausible, attenuated,
unsubstantial, frivolous, devoid of merit, or no longer open to discussion.” Apple
v. Glenn, 183 F.3d 477, 479 (6th Cir. 1999).
A complaint is frivolous if it lacks an arguable basis in law or in fact.
Neitzke v. Williams, 490 U.S. 319, 325 (1989). “A complaint is subject to
dismissal for failure to state a claim if the allegations, taken as true, show the
plaintiff is not entitled to relief.” Jones v. Bock, 549 U.S. 199, 215 (2007).
Here, Plaintiffs’ complaint does not contain sufficient information to
complete a screen. Plaintiffs merely asserts that the current Michigan
Department of Corrections mail policy infringes upon Mr. Smith’s right to receive
mail. Plaintiffs previously requested leave to amend the complaint and the Court

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grants leave to file an amended complaint WITHIN 30 DAYS OF THE DATE OF
THIS ORDER.
IT IS SO ORDERED.

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

Dated: August 23, 2018

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