Johnson #210442 v. Austin

Filing 3

MEMORANDUM OPINION ; signed by Judge Robert Holmes Bell (Judge Robert Holmes Bell, kcb)

UNITED STATES OF AMERICA U N IT E D STATES DISTRICT COURT FO R THE WESTERN DISTRICT OF MICHIGAN N O R T H E R N DIVISION

LOUIS DAVID JOHNSON, Jr. #210442,

) ) P l a in t i f f , ) ) v. ) ) P . AUSTIN, ) ) D e fe n d a n t. ) ____________________________________)

C a s e No. 2:08-cv-172 H O N . ROBERT HOLMES BELL

M E M O R A N D U M OPINION D E N Y I N G LEAVE TO PROCEED IN FORMA PAUPERIS - THREE STRIKES P la in tiff Louis David Johnson, Jr. #210442, a prisoner incarcerated at the Baraga M a x im u m Correctional Facility (AMF), filed a complaint pursuant to 42 U.S.C. § 1983. Plaintiff s e e k s leave to proceed in forma pauperis. Because Plaintiff has filed at least three lawsuits which w e re dismissed as frivolous, he is barred from proceeding in forma pauperis under 28 U.S.C. § 1 9 1 5 (g). The court will order Plaintiff to pay the $350.00 civil action filing fee within thirty days o f this opinion and accompanying order, and if Plaintiff fails to do so, the court will order that his a c tio n be dismissed without prejudice. Even if the case is dismissed, Plaintiff will be responsible fo r payment of the $350.00 filing fee in accordance with In re Alea, 286 F.3d 378 (6th Cir. April 1 1 , 2002). D is c u s s io n T h e Prison Litigation Reform Act ("PLRA"), Pub. L. No. 104-134, 110 Stat. 1321 ( 1 9 9 6 ) , which was enacted on April 26, 1996, amended the procedural rules governing a prisoner's

re q u e st for the privilege of proceeding in forma pauperis. As the Sixth Circuit has stated, the PLRA w a s "aimed at the skyrocketing numbers of claims filed by prisoners--many of which are meritless-a n d the corresponding burden those filings have placed on the federal courts." Hampton v. Hobbs, 1 0 6 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 lia b le for the civil action filing fee, and if the prisoner qualifies to proceed in forma pauperis, the p ris o n e r may pay the fee through partial payments as outlined in 28 U.S.C. § 1915(b). The c o n stitu tio n a lity 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 p re ve n tin g a prisoner from proceeding in forma pauperis when the prisoner repeatedly files meritless la w s u its . 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 proceedin g s in forma pauperis] if the prisoner has, on 3 or more prior o c c a s io n s , while incarcerated or detained in any facility, brought an a c tio n or appeal in a court of the United States that was dismissed on th e grounds that it is frivolous, malicious, or fails to state a claim u p o n which relief may be granted, unless the prisoner is under im m in e n t danger of serious physical injury. 2 8 U.S.C. § 1915(g). T h e statutory restriction "[i]n no event," found in § 1915(g), is express and u n e q u iv o c a l. The statute does allow an exception for a prisoner who is "under imminent danger of s e rio u s physical injury." The Sixth Circuit has upheld the constitutionality of the "three-strikes" rule a g a in s t arguments that it violates equal protection, the right of access to the courts, and due process,

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a n d that it constitutes a bill of attainder and is ex post facto legislation. Wilson v. Yaklich, 148 F.3d 5 9 6 , 604-606 (6th Cir.), cert. denied, 525 U.S. 1139 (1999); accord Rodriguez v. Cook, 169 F.3d 1 1 7 6 , 1178-82 (9th Cir. 1999); Rivera v. Allin, 144 F.3d 719, 723-26 (11th Cir. 1998); Carson v. J o h n so n , 112 F.3d 818, 821-22 (5th Cir. 1997). P la in tiff has been an active litigant in the federal courts in Michigan. In more than th re e of Plaintiff's lawsuits, the Court entered dismissals on the grounds of failure to state a claim. S e e Johnson v. Johns, et al., 2:02-cv-33 (Apr. 1, 2003); Johnson v. Carline, 2:02-cv-103 (Sept. 16, 2 0 0 2 ); Johnson v. Dellatifa, 2:02-cv-139 (Jan. 17, 2003); Johnson v. Stasewich, 2:02-cv-212 (Mar. 3 1 , 2003); Johnson v. Coolman, et al., 2:03-cv-3 (Apr. 1, 2003); Johnson v. Irvine, 2:03-cv-25 (Mar. 2 5 , 2003). See Wilson, 148 F.3d at 604. Moreover, Plaintiff's allegations do not fall within the e x c e p tio n to the three strikes rule, because he does not allege any facts establishing that he is under im m in e n t danger of serious physical injury. In light of the foregoing, § 1915(g) prohibits Plaintiff from proceeding in forma p a u p e r is in this action. Plaintiff has thirty days from the date of entry of this order to pay the entire c ivil action filing fee, which is $350.00. When Plaintiff pays his filing fee, the court will screen his c o m p la in t as required by 28 U.S.C. § 1915A and 42 U.S.C. § 1997e(c). If Plaintiff fails to pay the filin g fee within the thirty-day period, his case will be dismissed without prejudice, but he will c o n tin u e to be responsible for payment of the $350.00 filing fee. In re Alea, 286 F3d 378, 380-81 (6 th Cir. 2002).

Dated: S e p te m b e r 29, 2008

/s/ Robert Holmes Bell ROBERT HOLMES BELL U N IT E D STATES DISTRICT JUDGE -3-

SEND REMITTANCES TO THE FOLLOWING ADDRESS: C le r k , U.S. District Court 2 2 9 Federal Building 2 0 2 W. Washington St. M a rq u e tte , MI 49855 A ll checks or other forms of payment shall be payable to "Clerk, U.S. District Court."