Robinson #172898 v. Smith

Filing 2

MEMORANDUM OPINION DENYING LEAVE TO PROCEED IN FORMA PAUPERIS - THREE STRIKES ; signed by EDTN Judge R. Allan Edgar (EDTN Judge R. Allan Edgar, cam)

Robinson #172898 v. Smith

Doc. 2

Case 2:06-cv-00050-RAED-TPG

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Filed 02/22/2006

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UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MICHIGAN NORTHERN DIVISION

DARRYL A. ROBINSON #172898

) ) Plaintiff, ) ) v. ) ) B. SMITH, ) ) Defendant. ) ____________________________________ )

Case No. 2:06-cv-50 HON. R. ALLAN EDGAR

MEMORANDUM OPINION DENYING LEAVE TO PROCEED IN FORMA PAUPERIS - THREE STRIKES

P l a i n ti f f Darryl Anthony Robinson, a prisoner incarcerated at the Baraga C o r r e c t io n a l Facility (AMF), filed a complaint pursuant to 42 U.S.C. § 1983. Plaintiff seeks l e a v e to proceed in forma pauperis. Because Plaintiff has filed at least three lawsuits which were dismissed as frivolous, he is barred from proceeding in forma pauperis under 28 U.S.C. § 1915(g). The court will order Plaintiff to pay the $250.00 civil action filing fee within thirty days of this opinion and accompanying order, and if Plaintiff fails to do so, the court will order that his action be dismissed without prejudice. Even if the case is dismissed, P l a i n ti f f will be responsible for payment of the $250.00 filing fee in accordance with In re A l e a, 286 F.3d 378 (6th Cir. April 11, 2002). D i s c u s s io n

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T h e Prison Litigation Reform Act ("PLRA"), Pub. L. No. 104-134, 110 Stat. 1 3 2 1 (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 h a s stated, the PLRA was "aimed at the skyrocketing numbers of claims filed by prisoners-m a n y of which are meritless--and the corresponding burden those filings have placed on the f e d e r a l courts." Hampton v. Hobbs, 106 F.3d 1281, 1286 (6th Cir. 1997). For that reason, C o n g r e s s put into place economic incentives to prompt a prisoner to "stop and think" before f i l in g a complaint. Id. For example, a prisoner is liable for the civil action filing fee, and if t h e prisoner qualifies to proceed in forma pauperis, the prisoner may pay the fee through p a r t i a l payments as outlined in 28 U.S.C. § 1915(b). The constitutionality of the fee req uire me nts 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 P L R A by preventing a prisoner from proceeding in forma pauperis when the prisoner repea tedly 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 s e c t io n governing proceedings in forma pauperis] if the p r i s o n er has, on 3 or more prior occasions, while incarc e r a te d or detained in any facility, brought an action or a p p e a l in a court of the United States that was dismissed o n the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted, unless t h e prisoner is under imminent danger of serious physical in ju ry.

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28 U.S.C. § 1915(g). T h e statutory restriction "[i]n no event," found in § 1915(g), is express and uneq uivo cal. The statute does allow an exception for a prisoner who is "under imminent d a n g e r of serious physical injury." The Sixth Circuit has upheld the constitutionality of the " t h r e e - s t ri k e s " rule against arguments that it violates equal protection, the right of access to t h e courts, and due process, and that it constitutes a bill of attainder and is ex post facto l e g i sl a t io n . Wilson v. Yaklich, 148 F.3d 596, 604-606 (6th Cir.), cert. denied, 525 U.S. 1139 (1999); accord 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). P l a i n ti f f has been an active litigant in the federal courts in M ichig an. In more t h a n three of Plaintiff's lawsuits, the court entered dismissals on the grounds that they were f r i v o l o u s , malicious, or failed to state a claim. See Robinson v. Caruso, et al., No. 2:05-cv1 9 1 (W.D. Mich. 2005); Robinson v. Meni, et al., No. 2:05-cv-192 (W.D. Mich. 2005); R o b i n s o n v. Etelamaki, No. 2:05-cv-194 (W . D . Mich. 2005); Robinson v. Etelamaki, et al., N o . 2:05-cv-200 (W.D. Mich. 2005); Robinson v. Kutchie, et al., No. 2:05-cv-211 (W.D. M i c h . 2005); Robinson v. Snow, et al., No. 2:05-cv-212 (W.D. Mich. 2005); Robinson v. L e s a t z , et al., No. 2:05-cv-217 (W.D. M ich. 2005); Robinson v. Luoma, No. 2:05-cv-218 ( W .D . Mich. 2005). Moreover, Plaintiff's allegations do not fall within the exception to the

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three strikes rule, because he does not allege any facts establishing that he is under imminent da ng er of serious physical injury. In light of the foregoing, § 1915(g) prohibits Plaintiff from proceeding in forma pau peris in this action. Plaintiff has thirty days from the date of entry of this order to pay the entire civil action filing fee, which is $250.00. 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 P l a i n ti f f fails to pay the filing fee within the thirty-day period, his case will be dismissed w i t h o u t prejudice, but he will continue to be responsible for payment of the $250.00 filing fee . In re Alea, 286 F3d 378, 380-81 (6th Cir. 2002).

Dated: February 22, 2006

/s/ R. Allan Edgar R. ALLAN EDGAR U N I TE D STATES DISTRICT JUDGE

S E N D REMITTANCES TO THE FOLLOW I N G ADDRESS: Clerk, U.S. District Court 2 2 9 Federal Building 202 W. W ashin gton St. M a r q u e t t e , MI 49855 All checks or other forms of payment shall be payable to "Clerk, U.S. District Court."