Crawford #173114 et al v. Prison Health Services et al
OPINION denying leave to proceed IFP - Three Strikes; Order to issue; signed by Judge Janet T. Neff (Judge Janet T. Neff, clb)
UNITED STATES OF AMERICA
UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MICHIGAN
JAMES F. CRAWFORD et al.,
Case No. 1:12-cv-409
Honorable Janet T. Neff
PRISON HEALTH SERVICES et al.,
OPINION DENYING LEAVE
TO PROCEED IN FORMA PAUPERIS - THREE STRIKES
Plaintiff Philip Wayne Berryman #107202 and eleven other prisoners incarcerated
at Lakeland Correctional Facility have filed a complaint pursuant to 42 U.S.C. § 1983. Plaintiff
Berryman has not applied to proceed in forma pauperis, acknowledging that he is responsible for
his entire portion of the civil action filing fee (docket #13). Because Plaintiff has filed at least three
lawsuits that were dismissed as frivolous, malicious or for failure to state a claim, he is barred from
proceeding in forma pauperis under 28 U.S.C. § 1915(g). The current filing fee for a civil action
is $350.00. Because there are multiple Plaintiffs, each Plaintiff is proportionately liable for any fees
or costs. See Talley-Bey v. Knebl, 168 F.3d 884, 887 (6th Cir. 1999); In re Prison Litigation Reform
Act, 105 F.3d 1131, 1137 (6th Cir. 1997). Thus, each Plaintiff is liable for $29.17. The Court will
order Plaintiff Berryman to pay his $29.17 portion of the civil action filing fee within twenty-eight
(28) days of this opinion and accompanying order. If Plaintiff fails to do so, the Court will order
that his action be dismissed without prejudice. Even if the case is dismissed, Plaintiff will be
responsible for payment of his $29.17 portion of the filing fee, in accordance with In re Alea, 286
F.3d 378, 380-81 (6th Cir. 2002).
The Prison Litigation Reform Act (PLRA), Pub. L. No. 104-134, 110 Stat. 1321
(1996), which was enacted on April 26, 1996, amended the procedural rules governing a prisoner’s
request for the privilege of proceeding in forma pauperis. As the Sixth Circuit has stated, the PLRA
was “aimed at the skyrocketing numbers of claims filed by prisoners – many of which are
meritless – and 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
incentives to prompt a prisoner to “stop and think” before filing a complaint. Id. For example, a
prisoner is liable for the civil action filing fee, and if the prisoner qualifies to proceed in forma
pauperis, the prisoner may pay the fee through partial payments as outlined in 28 U.S.C. § 1915(b).
The constitutionality of the fee requirements of the PLRA has been upheld by the Sixth Circuit. Id.
In addition, another provision reinforces the “stop and think” aspect of the PLRA by
preventing a prisoner from proceeding in forma pauperis when the prisoner repeatedly files meritless
lawsuits. 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 proceedings in forma pauperis] 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.
28 U.S.C. § 1915(g). The statutory restriction “[i]n no event,” found in § 1915(g), is express and
unequivocal. The statute does allow an exception for a prisoner who is “under imminent danger of
serious physical injury.” The Sixth Circuit has upheld the constitutionality of the “three-strikes” rule
against arguments that it violates equal protection, the right of access to the courts, and due process,
and that it constitutes a bill of attainder and is ex post facto legislation. Wilson v. Yaklich, 148 F.3d
596, 604-06 (6th Cir. 1998); accord Pointer v. Wilkinson, 502 F.3d 369, 377 (6th Cir. 2007) (citing
Wilson, 148 F.3d at 604-06); Rodriguez v. Cook, 169 F.3d 1176, 1178-82 (9th Cir. 1999); Rivera
v. Allin, 144 F.3d 719, 723-26 (11th Cir. 1998); Carson v. Johnson, 112 F.3d 818, 821-22 (5th Cir.
Plaintiff has been an extremely active litigant in the federal courts in Michigan,
having filed nearly 40 civil actions. In at least three of Plaintiff’s lawsuits, a court has entered a
dismissal on the ground that the case was frivolous or failed to state a claim. See Berryman et al.
v. Gabry et al., No. 2:95-cv-71811 (E.D. Mich. Mar. 27, 1996); Berryman v. Berardo, No. 2:91-cv71329 (E.D. Mich Apr. 30, 1991); Berryman v. Jabe et al., No. 2:89-cv-72658 (E.D. Mich. Oct. 20,
1989). Although two of the dismissals were entered before enactment of the PLRA on April 26,
1996, the dismissals nevertheless count as strikes. See Wilson, 148 F.3d at 604. In addition, this
Court previously has denied Plaintiff leave to proceed in forma pauperis because he has three
strikes. See Berryman v. Blackman et al., No. 1:97-cv-692 (W.D. Mich. Nov. 7, 1997). Moreover,
Plaintiff’s allegations do not fall within the exception to the three-strikes rule because he does not
allege any facts establishing that he is under imminent danger of serious physical injury. Indeed,
Plaintiff acknowledges that he is responsible for his entire portion of the civil action filing fee.
In light of the foregoing, § 1915(g) prohibits Plaintiff from proceeding in forma
pauperis in this action. Plaintiff has twenty-eight (28) days from the date of entry of this order to
pay his entire portion of the civil action filing fee, which is $29.17. When Plaintiff pays his filing
fee, the Court will screen his complaint as required by 28 U.S.C. § 1915A and 42 U.S.C. § 1997e(c).
If Plaintiff fails to pay the filing fee within the 28-day period, his case will be dismissed without
prejudice, but he will continue to be responsible for payment of the $350.00 filing fee.
Dated: June 21, 2012
/s/ Janet T. Neff
Janet T. Neff
United States District Judge
SEND REMITTANCES TO THE FOLLOWING ADDRESS:
Clerk, U.S. District Court
399 Federal Building
110 Michigan Street, NW
Grand Rapids, MI 49503
All checks or other forms of payment shall be payable to “Clerk, U.S. District Court.”
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?