Kelly #225090 v. Moore

Filing 21

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

UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MICHIGAN
NORTHERN DIVISION
OPELTON KELLY,
Plaintiff,
v.

Case No. 2:11-cv-55
HON. ROBERT HOLMES BELL

UNKNOWN MOORE,
Defendant.
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OPINION REVOKING LEAVE
TO PROCEED IN FORMA PAUPERIS - THREE STRIKES
Plaintiff Opelton Kelly, a prisoner incarcerated at Richard A. Handlon Correctional
Facility, filed this complaint pursuant to 42 U.S.C. § 1983. Plaintiff was granted leave to proceed
in forma pauperis. Defendant has filed a Motion to Revoke Plaintiff’s In Forma Pauperis Status
and to Dismiss (Docket #11). Because Plaintiff has filed at least three lawsuits which were
dismissed as frivolous or for failing to state a claim, he is barred from proceeding in forma pauperis
under 28 U.S.C. § 1915(g). The court will vacate the earlier order allowing Plaintiff to proceed in
forma pauperis and order Plaintiff to pay the civil action filing fee within twenty-eight (28) days of
this opinion and accompanying order. If Plaintiff fails to do so, the court will order that his action
be dismissed without prejudice.
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 statute does allow an exception for a prisoner who is “under imminent danger of
serious physical injury.” 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).

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Plaintiff has been an active litigant in the federal courts in Michigan. In at least three
of Plaintiff’s lawsuits, the Court entered dismissals on the grounds that they were either frivolous
or failed to state a claim. See Kelly v. Unknown Miron, et al., Case No. 2:10-cv-243; Kelly v.
Cavanagh, et al., Case No. 2:06-cv-10430; Kelly v Shied, et al., Case No. 1:94-cv-00645. Although
two of the dismissals were entered before enactment of the PLRA on April 26, 1996, these
dismissals nevertheless count as strikes. See Wilson, 148 F.3d at 604. Moreover, Plaintiff’s
allegations do not fall within the exception to the three-strikes rule because he does not allege any
facts establishing that he is under imminent danger of serious physical injury. However, Plaintiff
asserts in his Second Response to Defendant’s Motion to Dismiss:
4. In a retaliation claim such as this, however, the harm suffered is the
adverse consequences which flow from the plaintiff [sic] constitutionally protected action. See Hines v Gomez, 108 F.3d 265, 269 (9th Cir
1997).
5. The injury asserted is the retaliatory accusations [sic] chilling effect
on Kelly’s First Amendment rights.
6. The fallure [sic] to demonstrate a more substantial injury does not
nullify Plaintiff [sic] retaliation claim.
7. Since First Amendment violations rarely if ever result in physical
injuries, construction of the PLRA against imminent danger of serious
physical injury would defeat congressional intent and render Constitutional protections meaningless.
(See Docket #16 at page 2).
Plaintiff alleges as authority Hines v. Gomez, 108 F.3d 256 (9th Cir. 1997), where a
death row inmate filed an action under 42 U.S.C. § 1983 against various prison officials alleging a
prison guard falsely charged him with a rule violation in retaliation for his prior use of the grievance
system. Id. at 267. The jury returned a verdict for the inmate; the correctional officer appealed the
verdict alleging the district court erred in not applying the deferential “some evidence” standard of
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review. Id. at 268. The court held that the “some evidence” standard of review afforded to the
disciplinary administrative decisions did not apply to correctional officer accusations. Id. at 269.
While this case might have some bearing on Plaintiff’s retaliation claim, it neither offers insight nor
pertains to the imminent danger of serious physical injury exception to the three-strikes rule. Plaintiff
alleges a First Amendment injury as the type of harm suffered. While a First Amendment violation
is a harm, as Plaintiff has noted, it rarely, if ever, results in physical injuries and certainly does not
approach the standard of imminent danger of serious physical injury. Additionally, the three-strikes
rule does not bar Plaintiff from bringing his retaliation claim, it merely bars him from proceeding
in forma pauperis and requires him to pay the filing fee.
In conclusion, section 1915(g) prohibits Plaintiff from proceeding in forma pauperis
in this action. The court will vacate the order granting in forma pauperis status and require Plaintiff
to pay the entire civil action filing fee, which is $350.00, within 28 days of the date of entry of this
order. If Plaintiff fails to pay the filing fee within the 28-day period, his case will be dismissed
without prejudice, but he will continue to be responsible for payment of the entire filing fee. See In
re Alea, 286 F.3d 378, 380-81 (6th Cir. 2002).

Dated: July 17, 2012

/s/ Robert Holmes Bell
ROBERT HOLMES BELL
UNITED STATES DISTRICT JUDGE

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