Wells #178200 v. Haske et al

Filing 4

OPINION ; signed by Chief Judge Robert J. Jonker (Chief Judge Robert J. Jonker, ymc)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
______

GLYNN LETERREL WELLS,
Plaintiff,
v.

Case No. 1:21-cv-304
Honorable Robert J. Jonker

AMY HASKE et al.,
Defendants.

____________________________/
OPINION DENYING LEAVE
TO PROCEED IN FORMA PAUPERIS - THREE STRIKES
This is a civil rights action brought by a state prisoner under 42 U.S.C. § 1983.
Plaintiff acknowledges that, 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), in the absence of allegations demonstrating that he is in
imminent danger of serious physical injury. Upon review, the Court concludes that Plaintiff is
barred from proceeding in forma pauperis. The Court therefore will order Plaintiff to pay the
$402.00 civil action filing fees applicable to those not permitted to proceed in forma pauperis.1
This fee must be paid within twenty-eight (28) days of this opinion and accompanying order. If
Plaintiff fails to pay the fee, the Court will order that this case be dismissed without prejudice.
Even if the case is dismissed, Plaintiff must pay the $402.00 filing fees in accordance with In re
Alea, 286 F.3d 378, 380–81 (6th Cir. 2002).

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The filing fee for a civil action is $350.00. 28 U.S.C. § 1914(a). The Clerk is also directed to collect a miscellaneous
administrative fee of $52.00. 28 U.S.C. § 1914(b); https://www.uscourts.gov/services-forms/fees/district-courtmiscellaneous-fee-schedule. The miscellaneous administrative fee, however, “does not apply to applications for a
writ of habeas corpus or to persons granted in forma pauperis status under 28 U.S.C. § 1915.” Id.

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 created 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

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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).
Plaintiff has been an active litigant in the federal courts in Michigan. In at least
three of Plaintiff’s lawsuits, the Court entered dismissals on the grounds that the cases were
frivolous, malicious, and/or failed to state a claim. See Wells v. Wagner, 1:93-cv-790 (W.D. Mich.
Oct. 25, 1993); Wells v. Pitcher, No. 1:94-cv-63 (W.D. Mich. May 4, 1994); Wells v. Grundy et
al., No. 1:95-cv-780 (W.D. Mich. June 10, 1996). 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. Plaintiff also has been denied leave to proceed in forma pauperis under
the three-strikes rule in at least two prior cases. See Wells v. Haske et al., No. 1:19-cv-599 (W.D.
Mich. Aug. 1, 2019); Wells v. Smead et al., No. 1:08-cv-1220 (W.D. Mich. Jan. 26, 2009).
Moreover, Plaintiff’s allegations do not fall within the exception to the three strikes
rule, because he does not allege facts establishing that he is under imminent danger of serious
physical injury. Indeed, Plaintiff has not filed an application to proceed in forma pauperis.
Instead, he filed a motion requesting 30 days to pay the full filing fee, in which he acknowledges
that he is not entitled to proceed in forma pauperis under the three-strikes rule. (ECF No. 2,
PageID.108.) Because the Court routinely allows 28 days for prisoners to pay the full filing fee
after being denied in forma pauperis and Plaintiff already has had ten days since filing his motion,
Plaintiff’s motion for extension of time will be denied as moot.
Therefore, § 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 civil
action filing fees, which total $402.00. When Plaintiff pays his filing fees, the Court will screen
his complaint as required by 28 U.S.C. § 1915A and 42 U.S.C. § 1997e(c). If Plaintiff does not

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pay the filing fees within the 28-day period, this case will be dismissed without prejudice, but
Plaintiff will continue to be responsible for payment of the $402.00 filing fees.
An order consistent with this opinion will issue.

Dated:

April 28, 2021

/s/ Robert J. Jonker
ROBERT J. JONKER
CHIEF UNITED STATES DISTRICT JUDGE

SEND REMITTANCES TO THE FOLLOWING ADDRESS:
Clerk, U.S. District Court
399 Federal Bldg.
110 Michigan St., N.W.
Grand Rapids, MI 49503
All checks or other forms of payment shall be payable to “Clerk, U.S. District Court.”

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