Dunbar #129278 et al v. Rose
Filing
16
OPINION ; signed by Judge Robert Holmes Bell (Judge Robert Holmes Bell, kcb)
UNITED STATES OF AMERICA
UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
JOSEPH GREGORY DUNBAR et al.,
Plaintiffs,
v.
Case No. 1:15-cv-881
Honorable Robert Holmes Bell
YVONNE ROSE et al.,
Defendants.
____________________________________/
OPINION DENYING LEAVE
TO PROCEED IN FORMA PAUPERIS - THREE STRIKES
This is a civil rights action that originally was brought by 33 state prisoners pursuant
to 42 U.S.C. § 1983. On October 19, 2015, the Court issued an opinion and order denying Plaintiffs’
motion for class certification and “Exparte Motion for Injunctive Relief, Motion for Evidentiary
Hearing, Motion to Waive Fees and Costs Temporarily.” In addition, the Court dismissed all of the
Plaintiffs, except for Joseph Gregory Dunbar, without prejudice for misjoinder of parties. The order
further directed Plaintiff Dunbar to file an amended complaint on the form provided by the Court
within twenty-eight days. In addition, the Court issued a deficiency order requiring Plaintiff Dunbar
to pay the civil action filing fee or apply to proceed in forma pauperis within twenty-eight days.
On December 3, 2015, Plaintiff Dunbar filed an amended complaint and a motion for
relief to proceed in forma pauperis. In his amended complaint, Plaintiff disclosed numerous civil
rights cases previously filed in the Eastern District of Michigan. Because Plaintiff has filed at least
three lawsuits in the Eastern District 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 Court will
order Plaintiff to pay 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 $400.00 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
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 proceed-2-
ings 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.
1997).
Plaintiff has been an active litigant in the federal courts in Michigan. The Eastern
District of Michigan had dismissed more than three of Plaintiff’s lawsuits as frivolous or for failure
to state a claim. See White et al. v. Wayne Cnty Cir et al., 2:03-cv-74171 (E.D. Mich. May 12,
2004); Dunbar et al. v. MI Cnty Prosecutors et al., 2:03-cv-70556 (E.D. Mich. March 10, 2003);
Neal et al. v. Sugierski et al., 2:03-cv-72729 (E.D. Mich. Aug. 21, 2003); Dunbar v. Posner et al.,
2:94-cv-70704 (E.D. Mich. March 22, 1994). Although one of the dismissals was entered before
enactment of the PLRA on April 26, 1996, the dismissal nevertheless counts as a strike. See Wilson,
148 F.3d at 604. 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.
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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 entire civil action filing fee, which is $400.00. 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 $400.00 filing fee.
Dated: December 18, 2015
/s/ Robert Holmes Bell
ROBERT HOLMES BELL
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.”
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