Hinton #122026 v. Maki
Filing
13
OPINION Denying Leave to Proceed In Forma Pauperis - Three Strikes ; signed by Judge R. Allan Edgar (Judge R. Allan Edgar, cam)
UNITED STATES OF AMERICA
UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MICHIGAN
NORTHERN DIVISION
CLARENCE A. HINTON,
Plaintiff,
Case No. 2:11-cv-184
v.
Honorable R. Allan Edgar
L. MAKI,
Defendant.
____________________________________/
OPINION DENYING LEAVE
TO PROCEED IN FORMA PAUPERIS - THREE STRIKES
Plaintiff Clarence Hinton, a prisoner incarcerated at Baraga Maximum Correctional
Facility, filed a complaint pursuant to 42 U.S.C. § 1983. Plaintiff sought and was granted leave to
proceed in forma pauperis (docket #12). However, it has come to the Court’s attention that Plaintiff
has filed at least three lawsuits that were dismissed as frivolous, malicious or for failure to state a
claim, and, thus, is barred from proceeding in forma pauperis under 28 U.S.C. § 1915(g). Therefore,
the Court will vacate its previous order granting leave to proceed in forma pauperis and order
Plaintiff to pay the $350.00 civil action filing fee within twenty-eight (28) days of this opinion and
accompanying order. If Plaintiff fails to comply with the Court’s order, his action will 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);
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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. The Court
have dismissed at least four of Plaintiff’s lawsuits as frivolous or for failure to state a claim. See
Hinton v. Lemke, No. 1:93-cv-279 (W.D. Mich. May 7, 1993); Hinton v. Budway, No. 2:92-cv-77254
(E.D. Mich. Jan. 1, 1993); Hinton v. Budway, No. 2:90-cv-723958 (E.D. Mich. Oct. 25, 1990);
Hinton v. Mukharjee et al., No. 2:90-cv-70457 (E.D. Mich. Oct. 22, 1990). While all of these
dismissals were entered before enactment of the PLRA on April 26, 1996, they nevertheless count
as strikes. See Wilson, 148 F.3d at 604. Plaintiff also was denied leave to proceed in forma pauperis
in the Eastern District because he has three strikes. See Hinton v. Sivik et al., No. 07-cv-12443 (E.D.
Mich. July 31, 2007). Moreover, while Plaintiff’s forty-one-page complaint is nearly illegible, it
appears to concern legal property, and thus, does not implicate the imminent danger exception.
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:
6/6/2011
/s/ R. Allan Edgar
R. Allan Edgar
United States District Judge
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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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