Fuller #211080 v. Gamelin et al
Filing
229
OPINION; signed by Judge Gordon J. Quist (Judge Gordon J. Quist, jmt)
UNITED STATES OF AMERICA
UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MICHIGAN
NORTHERN DIVISION
CURTIS FULLER #211080,
Plaintiff,
Case No. 2:02-cv-182
v.
Honorable Gordon J. Quist
JOHN J. GAMELIN, et al.,
Defendants.
____________________________________/
OPINION DENYING LEAVE
TO PROCEED IN FORMA PAUPERIS - THREE STRIKES
Plaintiff Curtis Fuller, a prisoner incarcerated at Marquette Branch Prison filed an
appeal to this Court’s order denying plaintiff’s motion for relief from judgment. Because Plaintiff
has filed at least three lawsuits which were dismissed as frivolous, he is barred from proceeding in
forma pauperis on appeal under 28 U.S.C. § 1915(g). The court will order Plaintiff to pay the
$455.00 filing fee on appeal within twenty-eight days of this opinion and accompanying order, and
if Plaintiff fails to do so, his appeal may be dismissed without prejudice.
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
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.” Id. § 1915(g). 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).
2
Plaintiff has been an active litigant in the federal courts in Michigan. At least three
of Plaintiff’s lawsuits have been dismissed as frivolous or for failure to state a claim. See Fuller v.
Gerth et al., No. 2:12-cv-368 (W.D. Mich. Nov. 20, 2012); Fuller v. Huss et al., No. 1:12-cv-926
(W.D. Mich. Sept. 28, 2012); Fuller v. Calvin et al., No. 2:00-cv-225 (W.D. Mich. May 29, 2001).1
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 appeal. An order consistent with this memorandum opinion shall be entered by the
Court.
Dated: July 29, 2013
/s/ Gordon J. Quist
GORDON J. QUIST
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.”
1
The dismissal in Fuller v. Calvin et al., No. 2:00-cv-225, where some of Plaintiff’s claims were dismissed
without prejudice and the remaining claims were dismissed for failure to state a claim, counts as a strike for purposes
of §1915(g). See Pointer v. Wilkinson, 502 F.3d 369, 377 (6th Cir. 2007).
3
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