Burnett #200640 v. McQuiggin et al

Filing 4

OPINION Denying Leave to Proceed In Forma Pauperis - Three Strikes ; signed by Judge R. Allan Edgar (EDTN Judge R. Allan Edgar, cam)

Burnett #200640 v. McQuiggin et al

Doc. 4

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

MICHAEL ANGELO BURNETT, P la in tiff, v. G R E G MCQUIGGIN, et al., D e f e n d a n ts . ____________________________________/ O P IN IO N DENYING LEAVE T O PROCEED IN FORMA PAUPERIS - THREE STRIKES P lain tiff Michael Angelo Burnett, a prisoner incarcerated at Chippewa Correctional Facility, filed a complaint pursuant to 42 U.S.C. § 1983. Plaintiff seeks leave to proceed in forma p a u p eris. Because Plaintiff has filed at least three lawsuits that were dismissed as frivolous, malicious o r for failure to state a claim, 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 twenty-eight (2 8 ) days of this opinion and accompanying order, and if Plaintiff fails to do so, the Court will order th at his action be dismissed without prejudice. Even if the case is dismissed, Plaintiff will be resp o n sib le for payment of the $350.00 filing fee in accordance with In re Alea, 286 F.3d 378, 380-81 (6 th Cir. 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 (1996), w h ich was enacted on April 26, 1996, amended the procedural rules governing a prisoner's request for th e privilege of proceeding in forma pauperis. As the Sixth Circuit has stated, the PLRA was "aimed C ase No. 2:10-cv-127 H o n o rab le R. Allan Edgar

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at the skyrocketing numbers of claims filed by prisoners ­ many of which are meritless ­ and the co rresp o n d in g burden those filings have placed on the federal courts." Hampton v. Hobbs, 106 F.3d 1 2 8 1 , 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 civ il action filing fee, and if the prisoner qualifies to proceed in forma pauperis, the prisoner may pay th e fee through partial payments as outlined in 28 U.S.C. § 1915(b). The constitutionality of the fee req u irem en ts 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 rev en tin g a prisoner from proceeding in forma pauperis when the prisoner repeatedly files meritless law su 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 proceedings in forma pauperis] if the prisoner has, on 3 or more prior occasions, w h ile incarcerated or detained in any facility, brought an action or ap p eal in a court of the United States that was dismissed on the grounds th at it is frivolous, malicious, or fails to state a claim upon which relief m ay be granted, unless the prisoner is under imminent danger of serious p h ysical injury. 2 8 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 in ju ry." The Sixth Circuit has upheld the constitutionality of the "three-strikes" rule against arguments th at 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

C ir.1 9 9 8 ); accord Rodriguez v. Cook, 169 F.3d 1176, 1178-82 (9th Cir. 1999); Rivera v. Allin, 144 F.3d 7 1 9 , 723-26 (11th Cir. 1998); Carson v. Johnson, 112 F.3d 818, 821-22 (5th Cir. 1997).

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Plaintiff 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, malicious an d /o r failed to state a claim. See Burnett v. Caruso, et al., No. 2:09-cv-180 (W.D. Mich., Oct. 8, 2 0 0 9 ); Burnett v. Hill, et al., No. 2:09-cv-39 (W.D. Mich., Mar. 6, 2009); Burnett v. Caruso, et al., No. 2 :0 8 -cv -1 6 8 (W.D. Mich., Jan. 5, 2009). Moreover, Plaintiff's allegations do not fall within the ex cep tio n to the three strikes rule, because he does not allege any facts establishing that he is under im m in en t danger of serious physical injury. In this case, Plaintiff merely states that from December 4, 2 0 0 9 , until the present date, Defendants have kept him in administrative segregation and have shouted racial and profane names at him every day. In light of the foregoing, § 1915(g) prohibits Plaintiff from proceeding in forma p a u p eris in this action. Plaintiff has twenty-eight (28) days from the date of entry of this order to pay th e entire civil action filing fee, which is $350.00. 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 Plaintiff fails to p ay the filing fee within the 28-day period, his case will be dismissed without prejudice, but he will co n tin u e to be responsible for payment of the $350.00 filing fee.

D a te d :

7/21/2010

/s/ R. Allan Edgar R. Allan Edgar U n ited States District Judge

S E N D REMITTANCES TO THE FOLLOWING ADDRESS: C lerk, U.S. District Court 2 2 9 Federal Building 2 0 2 West Washington M arq u ette, MI 49855 A ll checks or other forms of payment shall be payable to "Clerk, U.S. District Court."

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