Warren #245972 v. Jackson

Filing 5

OPINION; signed by Magistrate Judge Ray Kent (fhw)

Case 1:22-cv-00339-RSK ECF No. 5, PageID.58 Filed 05/10/22 Page 1 of 6

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
______
BRIAN A. WARREN,
Plaintiff,
v.

Case No. 1:22-cv-339
Honorable Ray Kent

SHANE JACKSON,
Defendant.

____________________________/
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
seeks leave to proceed in forma pauperis. (ECF No. 2.) 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).
Where a plaintiff is ineligible for in forma pauperis status under 28 U.S.C. § 1915, “he
must make full payment of the filing fee before his action may proceed.” In re Alea, 286 F.3d 378,
380 (6th Cir. 2002). That means payment should precede preliminary review pursuant to 28 U.S.C.
§ 1915A(b) and 42 U.S.C. § 1997e(c), which the Court is required to conduct prior to the service
of the complaint. See In re Prison Litigation Reform Act, 105 F.3d 1131, 1131, 1134
(6th Cir. 1997); McGore v. Wrigglesworth, 114 F.3d 601, 604–05 (6th Cir. 1997). Service of the
complaint on the named defendants is of particular significance in defining a putative defendant’s
relationship to the proceedings.
“An individual or entity named as a defendant is not obliged to engage in litigation unless
notified of the action, and brought under a court’s authority, by formal process.” Murphy Bros. v.

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Michetti Pipe Stringing, Inc., 526 U.S. 344, 347 (1999). “Service of process, under longstanding
tradition in our system of justice, is fundamental to any procedural imposition on a named
defendant.” Id. at 350. “[O]ne becomes a party officially, and is required to take action in that
capacity, only upon service of a summons or other authority-asserting measure stating the time
within which the party served must appear and defend.” Id. (citations omitted). That is, “[u]nless
a named defendant agrees to waive service, the summons continues to function as the sine qua non
directing an individual or entity to participate in a civil action or forgo procedural or substantive
rights.” Id. at 351. Therefore, the Prison Litigation Reform Act, Pub. L. No. 104-134, 110 Stat.
1321 (1996) (PLRA), by requiring courts to review and even resolve a plaintiff’s claims before
service, creates a circumstance where there may only be one party to the proceeding—the
plaintiff—at the district court level and on appeal. See, e.g., Conway v. Fayette Cnty. Gov’t, 212
F. App’x 418 (6th Cir. 2007) (stating that “[p]ursuant to 28 U.S.C. § 1915A, the district court
screened the complaint and dismissed it without prejudice before service was made upon any of
the defendants . . . [such that] . . . only [the plaintiff] [wa]s a party to this appeal”).
Here, Plaintiff has consented to a United States magistrate judge conducting all
proceedings in this case under 28 U.S.C. § 636(c). (ECF No. 4.) That statute provides that “[u]pon
the consent of the parties, a full-time United States magistrate judge . . . may conduct any or all
proceedings . . . and order the entry of judgment in the case . . . .” 28 U.S.C. § 636(c). Because the
named defendants have not yet been served, the undersigned concludes that they are not presently
parties whose consent is required to permit the undersigned to enter an order denying Plaintiff
leave to proceed in forma pauperis and directing him to pay the $402.00 filing fee. See Neals v.
Norwood, 59 F.3d 530, 532 (5th Cir. 1995) (“The record does not contain a consent from the

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defendants[; h]owever, because they had not been served, they were not parties to the action at the
time the magistrate entered judgment.”).1
The Court will order Plaintiff to pay the $402.00 civil action filing fees applicable to those
not permitted to proceed in forma pauperis.2 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).
Discussion
The PLRA, 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

1

But see Coleman v. Lab. & Indus. Rev. Comm’n of Wis., 860 F.3d 461, 471 (7th Cir. 2017)
(concluding that, when determining which parties are required to consent to proceed before a
United States magistrate judge under 28 U.S.C. § 636(c), “context matters” and the context the
United States Supreme Court considered in Murphy Bros. was nothing like the context of a
screening dismissal pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A(b), and 42 U.S.C. § 1997e(c));
Williams v. King, 875 F.3d 500, 503–04 (9th Cir. 2017) (relying on Black’s Law Dictionary for
the definition of “parties” and not addressing Murphy Bros.); Burton v. Schamp, 25 F.4th 198, 207
n.26 (3d Cir. 2022) (premising its discussion of “the term ‘parties’ solely in relation to its meaning
in Section 636(c)(1), and . . . not tak[ing] an opinion on the meaning of ‘parties’ in other contexts”).
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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-court-miscellaneous-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.”
https://www.uscourts.gov/services-forms/fees/district-court-miscellaneous-fee-schedule.
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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).
Plaintiff has been an active litigant in the federal courts in Michigan. In more than 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 Warren v. Mich. Dep’t of Corr., No. 1:05-cv-652
(W.D. Mich. Oct. 4, 2005); Warren v. Walters, No. 2:04-cv-74876 (E.D. Mich. Feb. 10, 2005);
Warren v. Miller, 4:03-cv-122 (W.D. Mich. Nov. 25, 2003); Warren v. Overton, No. 1:02-cv-917
(W.D. Mich. Jan. 7, 2003); Warren v. Gates, No. 1:02-cv-82 (W.D. Mich. Apr. 4, 2002); Warren
v. Miller, No. 1:96-cv-119 (W.D. Mich. Aug. 13, 1996). Because of these dismissals, Plaintiff has
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been denied leave to proceed in forma pauperis for several cases. See Warren v. Lincoln, No. 1:20cv-181 (W.D. Mich. Mar. 31, 2020); Warren v. Patton, No. 1:10-cv-677 (W.D. Mich. July 23,
2010); Warren v. Barnes, No. 1:07-cv-1096 (W.D. Mich. Nov. 30, 2007); Warren v. Jackson, No.
05-cv-74883 (E.D. Mich. Feb. 15, 2006).
Moreover, Plaintiff’s allegations do not fall within the “imminent danger” exception to the
three-strikes rule. 28 U.S.C. § 1915(g). Plaintiff does not allege facts showing that he is in
imminent danger of serious physical injury. Plaintiff sues the former warden of Brooks
Correctional Facility, Shane Jackson, for his handling of the COVID-19 pandemic at that facility.
Although Plaintiff alleges that his life remains in jeopardy due to the COVID-19 pandemic, his
allegations focus on events in 2020 and early 2021. The complaint’s most recent allegations
describe events on February 24 and March 2, 2021, more than a year before Plaintiff filed the
complaint. In those allegations, Plaintiff asserts that Defendant Jackson refused Plaintiff’s request
to share a written plan of action “that would prevent another outbreak of the deadly COVID-19
virus at th[e] facility . . . .” (Compl., ECF No. 1, PageID.4.) These allegations simply do not show
that Plaintiff was in imminent danger at the time he filed the complaint in March 2022.
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 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.
Dated:

May 10, 2022

/s/ Ray Kent
Ray Kent
United States Magistrate Judge

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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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