Coleman #174737 v. Tribley et al

Filing 6

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

FRED COLEMAN #174737, ) ) ) v. ) ) L IN D A TRIBLEY, et al. ) ) D e f e n d a n ts . ) ____________________________________) P l a in t i f f ,

) C a s e No. 2:08-cv-229 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 Fred Coleman, a prisoner incarcerated at the Baraga Maximum Correctional Fa c ility (AMF), filed a complaint pursuant to 42 U.S.C. § 1983. Plaintiff seeks leave to proceed in fo r m a pauperis. Because Plaintiff has filed at least three lawsuits which were dismissed as frivo lo u s, he is barred from proceeding in forma pauperis under 28 U.S.C. § 1915(g). The court will o rd e r Plaintiff to pay the $350.00 civil action filing fee within thirty days of this opinion and a c c o m p a n yin g order, and if Plaintiff fails to do so, the court will order that his action be dismissed w ith o u t prejudice. Even if the case is dismissed, Plaintiff will be responsible for payment of the $ 3 5 0 .0 0 filing fee in accordance with In re Alea, 286 F.3d 378 (6th Cir. April 11, 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 ting 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 proceedi n 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, a n d that it constitutes a bill of attainder and is ex post facto legislation. Wilson v. Yaklich, 148 F.3d

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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 at least three o f Plaintiff's lawsuits, the court entered dismissals on the grounds that they were frivolous, m a lic io u s and/or failed to state a claim. See Coleman v. Peterson, No. 2:96-cv-30 (W.D. Mich. Feb. 1 6 , 1996); Coleman v. Massy, No. 2:94-cv-144 (W.D. Mich. Mar. 29, 1996); Coleman v. M a c M e e k in , No. 2:94-cv-146 (W.D. Mich. Aug. 22, 1994); Coleman v. Morrow, No. 2:94-cv-190 (W .D . Mich. Sept. 26, 1994). Although all four of the dismissals were entered before enactment of th e PLRA on April 26, 1996, the dismissals nevertheless count as strikes. See Wilson, 148 F.3d at 6 0 4 . Moreover, Plaintiff's allegations do not fall within the exception to the three strikes rule, b e c a u se he does not allege any facts establishing that he is under imminent danger of serious p h ysica l injury.1 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).

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Plaintiff claims that Defendants have embezzled money from his prison account. -3-

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

S E N D 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."