Bush #379599 v. Michigan, State of et al
Filing
2
OPINION ; signed by Judge Robert J. Jonker (Judge Robert J. Jonker, mil)
UNITED STATES OF AMERICA
UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
DOUGLAS P. BUSH #379599,
Plaintiff,
Case No. 1:13-cv-519
v.
Honorable Robert J. Jonker
STATE OF MICHIGAN et al.,
Defendants.
____________________________________/
OPINION DENYING LEAVE
TO PROCEED IN FORMA PAUPERIS - THREE STRIKES
Plaintiff Douglas P. Bush, a prisoner incarcerated at the St. Louis Correctional
Facility, has filed a civil action1 but he has not paid the full civil action filing fee.2 Moreover,
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).
Thus, the Court will order Plaintiff to pay the remainder of the $400.00 civil action filing fee
applicable to those not permitted to proceed in forma pauperis 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 the filing fee in accordance with In re Alea, 286 F.3d 378, 380-81 (6th Cir. 2002).
Discussion
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
1
Plaintiff purports to bring a “petition” under “Federal Rule 60(b)(d)(3),” and he cites 42 U.S.C. § 1983 as a
basis for relief. (Compl., docket #1, Page ID##1, 2.)
2
To date, the Court has received $5.00 from Plaintiff for payment of the filing fee.
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. at 1288.
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.
-2-
1999); Rivera v. Allin, 144 F.3d 719, 723-26 (11th Cir. 1998); Carson v. Johnson, 112 F.3d 818,
821-22 (5th Cir. 1997).
Plaintiff has been an active litigant in the federal courts in Michigan. In at least
three of Plaintiff’s lawsuits, the Court entered dismissals for failure to state a claim. See Bush v.
Heyns et al., No. 1:13-cv-347 (W.D. Mich.) (dismissed Apr. 29, 2013); Bush v. Hutchenson et al.,
No. 1:12-cv-336 (W.D. Mich.) (dismissed May 21, 2012); Bush v. Marfori et al., No. 1:06-cv-524
(W.D. Mich.) (dismissed Jan. 8, 2007). 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.
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 the remainder of the civil action filing fee, or $395.00. When Plaintiff pays the 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 $395.00.
/s/Robert J. Jonker
ROBERT J. JONKER
UNITED STATES DISTRICT JUDGE
Dated: June 21, 2013
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.”
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