Burden v. Torrey et al

Filing 5

OPINION and ORDER Denying the Application to Proceed Without Prepayment of Fees and Costs and Dismissing the Complaint. Signed by District Judge Linda V. Parker. (RLou)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
JIMMY BURDEN,
Plaintiff,
v.

Case Number: 17-cv-13448
Honorable Linda V. Parker

G. TORREY, et. al.,
Defendants,
_________________________________/
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 Lakeland
Correctional Facility in Coldwater, 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).

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Plaintiff failed to submit the requisite filing fees when he filed his complaint: the
$350.00 filing fee and the $ 50.00 administrative fee.
“[I]f 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). See also In Re Prison Litigation Reform Act, 105 F.3d 1131, 1138 (6th
Cir. 1997). However, 28 U.S.C. § 1915(b) provides prisoners the opportunity to
make an initial partial payment and pay the remainder in monthly installments.
This Court will construe Plaintiff’s complaint as a request to proceed in forma
pauperis because of his failure to submit his filing fees with his complaint. See
Szymanski v. U.S. Marshal, No. 14-cv-10305, 2014 WL 1308821, at *1 (E.D.
Mich. Mar. 28, 2014).
A review of federal court records indicates the Plaintiff has at least nine
prior civil rights complaints that have been dismissed for being frivolous,
malicious, or for failing to state a claim upon which relief could be granted. See
Burden v. Maki, No. 2:93-cv-306 (W.D. Mich. Mar. 30, 1994), appeal dismissed
No. 94-1359 (6th Cir. May 6, 1994); Burden v. Torreano, No. 2:94-cv-28 (W.D.
Mich. Mar. 30, 1994), appeal dismissed No. 94-1381 (6th Cir. June 27, 1994);
Burden v. Mich. State Police, et. al., 94-cv-71286 (E.D. Mich. May 18, 1994);
Burden v. Quinnell, et. al., 94-cv-10087 (E.D. Mich. June 3, 1994), appeal
dismissed No. 94-2145 (6th Cir. May 16, 1995); Burden v. Greeley, No. 2:94-cv2

156 (W.D. Mich. June 24, 1994), appeal dismissed No. 94-1813 (6th Cir. Aug. 12,
1994); Burden v. Torreano, et. al., No. 2:94-cv-133 (W.D. Mich. July 13, 1994);
appeal dismissed No. 94-1837 (6th Cir. Dec. 14, 1994); Burden v. Hawley, et. al.,
No. 2:94-cv-120 (W.D. Mich. Sept. 16, 1994), appeal dismissed No. 94-2114 (6th
Cir. May 16, 1995); Burden v. Ludwick, et. al., 96-cv-71845 (E.D. Mich. May 30,
1996); appeal dismissed No. 96-1920 (6th Cir. Sep. 16, 1996); Burden v.
Kedzierzawski, No. 2:95-cv-362 (W.D. Mich. October 15, 1996), appeal dismissed
No. 96-1148 (6th Cir. Mar. 11, 1996).
In addition, Plaintiff has been denied leave to proceed in forma pauperis
under 28 U.S.C. § 1915(g), the “three-strikes” rule, because of these dismissals.
See Burden v. Cason, et. al., No. 1:03-cv-655 (WD. Mich. Nov. 19, 2003), appeal
dismissed No. 04-1152 (6th Cir. Mar. 19, 2004).
Under the Prison Litigation Reform Act of 1995 (“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); ThaddeusX 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 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
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28 U.S.C. § 1915(g); Clemons v. Young, 240 F. Supp. 2d 639, 641 (E.D. Mich.
2003). A federal district court may raise the three strikes provision of the PLRA
sua sponte. Witzke, 966 F. Supp. at 539. The federal courts in general, and this
Court in particular, can take judicial notice of a plaintiff’s prior dismissals for
purposes of § 1915(g). See Taylor v. United States, 161 F. App’x 483, 485-86 (6th
Cir. 2005).
Plaintiff has had at least nine prior civil rights complaints that were
dismissed for being frivolous, malicious, or failing to state a claim upon which
relief could be granted. The fact that most, if not all, of Plaintiff’s cases were
dismissed prior to the enactment of the PLRA does not mean they cannot be used
to deny Plaintiff permission to proceed without prepayment of fees or costs. The
three strikes provision contained in § 1915(g) applies to complaints filed prior to
April 26, 1996, the enactment date of the PLRA. See Wilson v. Yaklich, 148 F.3d
596, 603-04 (6th Cir. 1998) (“dismissals of prior actions entered prior to the
effective date of the PLRA may be counted towards the ‘three strikes’ referred to
in 28 U.S.C. § 1915(g).”)
Plaintiff has not alleged any facts that would establish that he is in imminent
danger of serious physical injury to come within the § 1915(g) exception. Mulazim
v. Mich. Dept. of Corr., 28 F. App’x 470, 472 (6th Cir. 2002). Although Plaintiff
alleges that Defendant G. Torrey, the food service director, hit him with a dining
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tray while the two men were in the kitchen mop room, this would be insufficient to
invoke the imminent danger exception to the three strikes rule.
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); see also Vandiver v. Vasbinder, 416 F. App’x 560, 562 (6th Cir. 2011).
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. 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 §
1915(g) if he decides to pay the filing fee under the fee provisions of 28 U.S.C. §
1914. See Witzke, 966 F. Supp. at 540.
Because Plaintiff has had nine prior cases dismissed 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, 805-06 (W.D. Tenn.
1999). The Court therefore refuses to certify that any appeal from this dismissal
would be in good faith.
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IT IS HEREBY ORDERED that Plaintiff’s in forma pauperis status is
DENIED, and the complaint [ECF No. 1] is DISMISSED WITHOUT
PREJUDICE pursuant to 28 U.S.C. § 1915(g).
IT IS FURTHER ORDERED that the Certificate of Appealability is
denied because any appeal taken by the Plaintiff would not be done in good faith.
s/ Linda V. Parker
LINDA V. PARKER
U.S. DISTRICT JUDGE
Dated: November 28, 2017
I hereby certify that a copy of the foregoing document was mailed to counsel of
record and/or pro se parties on this date, November 28, 2017, by electronic and/or
U.S. First Class mail.
s/ R. Loury
Case Manager

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