Rogers #447843 v. Burns

Filing 4

OPINION; signed by District Judge Jane M. Beckering (lep)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
______
SEAN ADAM ROGERS,
Plaintiff,
v.

Case No. 1:24-cv-849
Honorable Jane M. Beckering

UNKNOWN BURNS,
Defendant.

____________________________/
OPINION
This is a civil rights action brought by a state prisoner under 42 U.S.C. § 1983. Plaintiff
has filed a motion for leave to proceed in forma pauperis. (ECF No. 2.) However, Plaintiff 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).
Plaintiff has filed at least three lawsuits that were dismissed as frivolous, malicious, or for
failure to state a claim, and Plaintiff has not demonstrated that he is in imminent danger of serious
physical injury to allow him to proceed in forma pauperis in this action. Further, Plaintiff has not
paid the $405.00 civil action filing fees applicable to those not permitted to proceed in forma
pauperis.1 Accordingly, for the reasons set forth below, this action will be dismissed without
prejudice pursuant to 28 U.S.C. § 1915(g).

1

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 $55.00. 28 U.S.C. § 1914(b); https://www.uscourts.
gov/services-forms/fees/district-court-miscellaneous-fee-schedule. However, the miscellaneous
administrative fee “does not apply to applications for a writ of habeas corpus or to persons granted

Discussion
The PLRA 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 process,

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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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 Michigan federal courts. In 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 Rogers v. Roy, No. 1:21-cv-140 (W.D. Mich. Apr. 29, 2021);
Rogers v. Mackie et al., No. 1:20-cv-394 (W.D. Mich. Jul. 15, 2020); Rogers v. MacLaren et al.,
No. 1:20-cv-263 (W.D. Mich. Jun. 26, 2020).
Moreover, Plaintiff’s allegations do not fall within the “imminent danger” exception to the
three-strikes rule. 28 U.S.C. § 1915(g). Plaintiff is presently incarcerated with the Michigan
Department of Corrections (MDOC) at the Kinross Correctional Facility (KCF) in Kincheloe,
Chippewa County, Michigan. The events about which he complains, however, occurred at the
Carson City Correctional Facility (DRF) in Carson City, Montcalm County, Michigan. Plaintiff
sues DRF Classification Director Unknown Burns and alleges that Defendant Burns “forced”
Plaintiff to work in food service in 2021, despite concerns regarding COVID-19. (ECF No. 1,
PageID.6.) Even assuming that Plaintiff had been in imminent danger at one time, “an otherwise
ineligible prisoner is only eligible to proceed in forma pauperis if he is in imminent danger at the
time of filing.” Vandiver v. Vasbinder, 416 F. App’x 560, 562 (6th Cir. 2011) (quoting Ashley v.
Dilworth, 147 F.3d 715, 717 (8th Cir. 1998) (emphasis in Ashley)). Because Plaintiff’s complaint
concerns events which arose years prior, and because Plaintiff is no longer confined at the facility
where he claims that Defendant Burns is employed, Plaintiff cannot demonstrate that he faces an
imminent danger of serious physical injury at the time that he filed his complaint.
Accordingly, Plaintiff is barred from proceeding in forma pauperis under § 1915(g).
Plaintiff also has not paid the $405.00 civil action filing fees applicable to those not permitted to

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proceed in forma pauperis. The Court will therefore dismiss this action without prejudice. See
Dupree v. Palmer, 284 F.3d 1234, 1236 (11th Cir. 2002) (“[T]he proper procedure is for the district
court to dismiss the complaint without prejudice when it denies the prisoner leave to proceed in
forma pauperis pursuant to the three strikes provision of § 1915(g).”). Plaintiff is free to refile his
complaint as a new action in this Court if he submits the filing fees at the time that he initiates the
new action.
Conclusion
For the foregoing reasons, the Court will deny Plaintiff leave to proceed in forma pauperis.
The Court will dismiss this action without prejudice to Plaintiff’s right to refile his complaint as a
new action in this Court with the full civil action filing fees.2
For the same reasons that the Court dismisses the action, the Court discerns no good-faith
basis for an appeal. See 28 U.S.C. § 1915(a)(3); McGore v. Wrigglesworth, 114 F.3d 601, 611 (6th
Cir. 1997). Further, should Plaintiff appeal this decision, he must pay the $605.00 appellate filing
fee in a lump sum, because he is prohibited from proceeding in forma pauperis on appeal by 28
U.S.C. § 1915(g).
An Order and Judgment consistent with this Opinion will be entered.

Dated:

August 29, 2024

/s/ Jane M. Beckering
Jane M. Beckering
United States District Judge

2

Because Plaintiff has the opportunity to refile his complaint as a new action in this Court by
paying the full civil action filing fees at the time of filing the new action, the Court will not assess
the district court filing fees in the present action.
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