Walker #106503 v. Dube
Filing
3
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
LARRY JOE WALKER #106503,
Plaintiff,
Case No. 2:13-cv-275
v.
Honorable R. Allan Edgar
D. DUBE,
Defendant.
____________________________________/
OPINION DENYING LEAVE
TO PROCEED IN FORMA PAUPERIS - THREE STRIKES
Plaintiff Larry Joe Walker, a prisoner incarcerated at Baraga Maximum Correctional
Facility (AMF), 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 $400.00 civil action filing fee applicable
to those not permitted to proceed in forma pauperis 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. Even if the case is dismissed, Plaintiff will be responsible for payment of the
$400.00 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
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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. In more than
three of Plaintiff’s lawsuits, the Court entered dismissals on the grounds of frivolous, malicious and
/ or for failure to state a claim. See Siddiq v. Edlund, No. 2:99-cv-00117 (W.D. Mich. Aug. 31,
2000); Siddiq v. Yon, No. 2:99-cv-00050 (W.D. Mich. Nov. 3, 1999); Siddiq v. Stine, No. 2:96-cv00097 (W.D. Mich. Jul. 1, 1996). 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.
Plaintiff alleges that Defendant assaulted him in 2009, and that he threatened to “nail
[his] black ass” in retaliation for filing a grievance on July 17, 2013. Allegations that a prisoner has
faced imminent danger in the past are insufficient to trigger the exception under § 1915(g). Ashley
v. Dilworth, 147 F.3d 715, 717 (8th Cir. 1998); accord Banos v. O’Guin, 144 F.3d 883, 884 (5th Cir.
1998) (“The plain language of the statute leads us to conclude that a prisoner with three strikes is
entitled to proceed with his action or appeal only if he is in imminent danger at the time that he seeks
to file his suit in district court or seeks to proceed with his appeal or files a motion to proceed IFP.”).
See also Luedtke v. Bertrand, 32 F. Supp. 2d 1074, 1077 (E.D. Wis. 1999) (“[T]he exception for
claims concerning an ‘imminent danger of serious physical injury’ cannot be triggered solely by
complaints of past abuse.”) Moreover, a vague, non-specific threat is insufficient to rise to the level
of an imminent danger.
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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 $400.00. 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 $400.00 filing fee.
Dated:
9/23/2013
/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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