Gresham #272603 v. Granholm et al
Filing
150
OPINION Denying Leave to Proceed on Appeal In Forma Pauperis - Three Strikes ; signed by Judge R. Allan Edgar (Judge R. Allan Edgar, cam)
UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MICHIGAN
NORTHERN DIVISION
MICHAEL GRESHAM #272603,
Plaintiff,
Case No. 2:09-cv-231
v.
Honorable R. Allan Edgar
JENNIFER M. GRANHOLM, et al.,
Defendants.
____________________________________/
OPINION DENYING LEAVE TO PROCEED
ON APPEAL IN FORMA PAUPERIS - THREE STRIKES
Plaintiff Michael Gresham, a prisoner incarcerated at Ionia Maximum Correctional
Facility, has filed an interlocutory appeal in this matter. 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 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).
Plaintiff has been an active litigant in the federal courts in Michigan having filed
more than 30 civil actions. The Court has dismissed more than three of Plaintiff’s actions for failure
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to state a claim. See Gresham v. Caruso et al., No. 2:10-cv-195 (W.D. Mich. Apr. 11, 2011);
Gresham v. Paine et al., No. 1:10-cv-1146 (W.D. Mich. Mar. 8, 2011); Gresham v. Caruso et al.,
No. 1:10-cv-1038 (W.D. Mich. Jan. 26, 2011); Gresham v. Verville et al., No. 2:10-cv-198 (W.D.
Mich. Jan. 19, 2011); Gresham v. Mich. Dep’t of Corr. et al., No. 2:07-cv-241 (W.D. Mich. June 9,
2008). In addition, the Court previously has denied Plaintiff leave to proceed in forma pauperis
because he has three strikes. See Gresham v. LaChance et al., 2:11-cv-231 (W.D. Mich. Aug. 12,
2011); Gresham v. Canlis et al., No. 2:11-cv-179 (W.D. Mich. June 9, 2011); Dennis v. Canlis, No.
2:11-cv-186 (W.D. Mich. June 6, 2011).
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:
5/16/2012
/s/ R. Allan Edgar
R. Allan Edgar
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.”
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