McGee #192103 v. Unknown Part(y)(ies)

Filing 2

OPINION; signed by Judge Gordon J. Quist (Judge Gordon J. Quist, jmt)

UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MICHIGAN
NORTHERN DIVISION

LARRY MCGEE,
Plaintiff,
v.

Case No. 2:11-cv-111
Honorable Gordon J. Quist

UNKNOWN PARTIES,
Defendants.
________________________/
OPINION DENYING LEAVE
TO PROCEED IN FORMA PAUPERIS - THREE STRIKES
Plaintiff Larry McGee, a prisoner incarcerated at the Baraga Maximum Correctional
Facility, filed a complaint pursuant to 42 U.S.C. § 1983. Plaintiff seeks leave to proceed in forma
pauperis. Because Plaintiff has filed at least three lawsuits that were dismissed as frivolous,
malicious or for failure to state a claim, he is barred from proceeding in forma pauperis under 28
U.S.C. § 1915(g). The Court will order Plaintiff to pay the $350.00 civil action filing fee within
twenty-eight (28) days of this opinion and accompanying order, and if Plaintiff fails to do so, the
Court will order that his action be dismissed without prejudice. Even if the case is dismissed,
Plaintiff will be responsible for payment of the $350.00 filing fee in accordance with In re Alea,
286 F.3d 378, 380-81 (6th Cir. 2002).
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 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 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. In at least three
of Plaintiff’s lawsuits, the Court entered dismissals because the complaints were frivolous or failed
to state a claim. See McGee v. Tyszkiewicz, 1:99-cv-132 (W.D. Mich.) (March 12, 1999 Op. & J.);
McGee v. McGinnis, 1:99-cv-94 (W.D. Mich.) (March 5, 1999 Op. & J.); McGee v. Cram, No.

-2-

2:98-cv-46 (July 2, 1998 Ord.). On at least eight prior occasions, plaintiff has been denied leave to
proceed in forma pauperis because he has three strikes. See McGee v. Michigan Department of
Corrections, 1:00-cv-78 (W.D. Mich.) (March 2, 2000 Mem. Op. & Ord.); McGee v. Unknown
Parties, No. 1:00-cv-40 (W.D. Mich.) (Jan. 28, 2000 Mem. Op. & Ord.); McGee v. Unknown
Parties, 1:99-cv-901 (W.D. Mich.) (Nov. 19, 1999 Mem. Op. & Ord.); McGee v. Bachor, 1:99-cv570 (W.D. Mich.) (Aug. 11, 1999 Mem. Op. & Ord.); McGee v. William, 1:99-cv-272 (W.D. Mich.)
(May 4, 1999 Mem. Op. & Ord.); McGee v. Smith, No. 1:99-cv-357 (W.D. Mich.) (May 24, 1999
Mem. Op. & Ord.); McGee v. Unknown Party, No. 1:99-cv-672 (W.D. Mich.) (Sept. 8, 1999 Mem.
Op. & Ord.); McGee v. Teft, No. 1:99-cv-744 (W.D. Mich.) (Oct. 5, 1999 Mem. Op. & Ord.).
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.
In light of the foregoing, § 1915(g) prohibits Plaintiff from proceeding in forma
pauperis in this action. Plaintiff has twenty-eight (28) days from the date of entry of this order to
pay the 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 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 $350.00 filing fee.

Dated: June 1, 2011

/s/ Gordon J. Quist
GORDON J. QUIST
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.”

-3-