Robinson #172898 v. Livingston

Filing 3

OPINION denying leave to proceed in forma pauperis - three strikes ; signed by Judge Robert Holmes Bell (Judge Robert Holmes Bell, kcb)

UNITED STATES OF AMERICA U N IT E D STATES DISTRICT COURT FO R THE WESTERN DISTRICT OF MICHIGAN S O U T H E R N DIVISION

DARRYL ROBINSON, P l a in t i f f , v. (UNKNOWN) LIVINGSTON, D e fe n d a n t. ____________________________________/ O P I N I O N DENYING LEAVE T O PROCEED IN FORMA PAUPERIS - THREE STRIKES P l a i n t i f f Darryl Robinson, a prisoner incarcerated at Ionia Maximum Correctional Fa c ility, filed a complaint pursuant to 42 U.S.C. § 1983. Plaintiff seeks leave to proceed in forma p a u p e r is. Because Plaintiff has filed at least three lawsuits which were dismissed as frivolous, he is barred from proceeding in forma pauperis under 28 U.S.C. § 1915(g). The Court will order P la in tiff to pay the $350.00 civil action filing fee within thirty days of this opinion and accompanyin g order, and if Plaintiff fails to do so, the Court will order that his action be dismissed without p re ju d ic e . Even if the case is dismissed, Plaintiff will be responsible for payment of the $350.00 filin g fee in accordance with In re Alea, 286 F.3d 378, 380-81 (6th Cir. 2002). D is c u s s io n T h e Prison Litigation Reform Act (PLRA), Pub. L. No. 104-134, 110 Stat. 1321 ( 1 9 9 6 ) , which was enacted on April 26, 1996, amended the procedural rules governing a prisoner's re q u e st for the privilege of proceeding in forma pauperis. As the Sixth Circuit has stated, the PLRA Case No. 1:08-cv-964 H o n o ra b le Robert Holmes Bell

w a s "aimed at the skyrocketing numbers of claims filed by prisoners­many of which are m e ritle s s ­ a n d the corresponding burden those filings have placed on the federal courts." Hampton v . Hobbs, 106 F.3d 1281, 1286 (6th Cir. 1997). For that reason, Congress put into place economic in c e n tiv e s to prompt a prisoner to "stop and think" before filing a complaint. Id. For example, a p ris o n e r is liable for the civil action filing fee, and if the prisoner qualifies to proceed in forma p a u p e r is, the prisoner may pay the fee through partial payments as outlined in 28 U.S.C. § 1915(b). T h e constitutionality of the fee requirements of the PLRA has been upheld by the Sixth Circuit. Id. a t 1288. In addition, another provision reinforces the "stop and think" aspect of the PLRA by p re ve n ting a prisoner from proceeding in forma pauperis when the prisoner repeatedly files meritless la w s u its . Known as the "three-strikes" rule, the provision states: In no event shall a prisoner bring a civil action or appeal a judgment in a civil action or proceeding under [the section governing proceedi n g s in forma pauperis] if the prisoner has, on 3 or more prior o c c a s io n s , while incarcerated or detained in any facility, brought an a c tio n or appeal in a court of the United States that was dismissed on th e grounds that it is frivolous, malicious, or fails to state a claim u p o n which relief may be granted, unless the prisoner is under im m in e n t danger of serious physical injury. 2 8 U.S.C. § 1915(g). T h e statutory restriction "[i]n no event," found in § 1915(g), is express and u n e q u iv o c a l. The statute does allow an exception for a prisoner who is "under imminent danger of s e rio u s physical injury." The Sixth Circuit has upheld the constitutionality of the "three-strikes" rule a g a in s t arguments that it violates equal protection, the right of access to the courts, and due process, a n d that it constitutes a bill of attainder and is ex post facto legislation. Wilson v. Yaklich, 148 F.3d 5 9 6 , 604-06 (6th Cir.1998); accord Rodriguez v. Cook, 169 F.3d 1176, 1178-82 (9th Cir. 1999);

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R iv e r a v. Allin, 144 F.3d 719, 723-26 (11th Cir. 1998); Carson v. Johnson, 112 F.3d 818, 821-22 ( 5 t h Cir. 1997). Plaintiff has been an active litigant in the federal courts in Michigan by filing over th irty civil actions in this Court. In more than three of Plaintiff's lawsuits, the Court has entered d ism issa ls on the grounds that they were frivolous, malicious, or failed to state a claim. See R o b in s o n v. Lesatz et al., No. 2:05-cv-217 (W.D. Mich. Nov. 7, 2005); Robinson v. Luoma, No. 2 :0 5 -c v -2 1 8 (W.D. Mich. Nov. 7, 2005); Robinson v. Kutchie et al., No. 2:05-cv-211 (W.D. Mich. O c t. 28, 2005); Robinson v. Snow et al., No. 2:05-cv-212 (W.D. Mich. Oct. 28, 2005); Robinson v. E te la m a k i et al., No. 2:05-cv-200 (W.D. Mich. Oct. 4, 2005); Robinson v. Caruso et al., No. 2 :0 5 -c v -1 9 1 (W.D. Mich. Sept. 21, 2005); Robinson v. Meni et al., No. 2:05-cv-192 (W.D. Mich. S e p t. 19, 2005); and Robinson v. Etelamaki, No. 2:05-cv-194 (W.D. Mich. Sept. 19, 2005). M o r e o v e r , Plaintiff's allegations do not fall within the exception to the three-strikes rule because h e does not allege any facts establishing that he is under imminent danger of serious physical injury. In light of the foregoing, § 1915(g) prohibits Plaintiff from proceeding in forma p a u p e r is in this action. Plaintiff has thirty days from the date of entry of this order to pay the entire c ivil action filing fee, which is $350.00. When Plaintiff pays his filing fee, the Court will screen his c o m p la in t as required by 28 U.S.C. § 1915A and 42 U.S.C. § 1997e(c). If Plaintiff fails to pay the filin g fee within the thirty-day period, his case will be dismissed without prejudice, but he will c o n tin u e to be responsible for payment of the $350.00 filing fee.

D a te d : O c to b e r 22, 2008

/s/ Robert Holmes Bell ROBERT HOLMES BELL U N IT E D STATES DISTRICT JUDGE -3-

SEND REMITTANCES TO THE FOLLOWING ADDRESS: C le r k , U.S. District Court 3 9 9 Federal Building 1 1 0 Michigan Street, NW G ra n d Rapids, MI 49503 A ll checks or other forms of payment shall be payable to "Clerk, U.S. District Court."