Velthuysen #195606 et al v. Unknown Party #1 et al
OPINION ; signed by Chief Judge Robert J. Jonker (Chief Judge Robert J. Jonker, ymc)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
CHRISTOPHER J. VELTHUYSEN,
Case No. 2:17-cv-179
Honorable Robert J. Jonker
UNKNOWN PARTY #1 et al.,
OPINION DENYING CLASS ACTION STATUS and
LEAVE TO PROCEED IN FORMA PAUPERIS - THREE STRIKES
This is a civil rights action brought by a state prisoner under 42 U.S.C. § 1983.
Plaintiff Christopher J. Velthuysen filed the instant complaint, which purports to be a class action
on behalf of all inmates at the Baraga Correctional Facility. In addition, eight other inmates have
signed Plaintiff’s motion for order to file the instant case as a class action (ECF No. 3). It is well
established that pro se litigants are inappropriate representatives of the interests of others. See
Garrison v. Mich. Dep’t of Corr., 333 F. App’x 914, 919 (6th Cir. 2009) (citing Oxendine v.
Williams, 509 F.2d 1405, 1407 (4th Cir. 1975)); see also Dodson v. Wilkinson, 304 F. App’x 434,
438 (6th Cir. 2008); Ziegler v. Michigan, 59 F. App’x 622, 624 (6th Cir. 2003); Palasty v. Hawk,
15 F. App’x 197, 200 (6th Cir. 2001); Howard v. Dougan, No. 99-2232, 2000 WL 876770, at *1
(6th Cir. June 23, 2000). Because Plaintiff is an incarcerated pro se litigant, the Court finds that
he is not an appropriate representative of a class. Therefore, the Court will deny Plaintiff’s request
for class certification (ECF No. 3). Because Plaintiff Velthuysen is the only individual who signed
the complaint, he is the only Plaintiff in this action.
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. This fee must be paid within twenty-eight (28) days of this opinion and
accompanying order. If Plaintiff fails to pay the fee, the Court will order that this case be dismissed
without prejudice. Even if the case is dismissed, Plaintiff must pay the $400.00 filing fee in
accordance with In re Alea, 286 F.3d 378, 380-81 (6th Cir. 2002).
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 created
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).
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 that the cases were
frivolous, malicious, and/or failed to state a claim. See Velthuysen v. Basal, et al., Case No.
2:10-cv-168 (W.D. Mich. Sept. 22, 2010); Velthuysen v. Eicher, et al., Case No. 2:17-cv-60 (W.D.
Mich. May 2, 2017); Velthuysen v. Henderson, et al., Case No. 2:17-cv-71 (W.D. Mich. Apr. 28,
2017). All of Plaintiff’s dismissals were entered after enactment of the PLRA on April 26, 1996.
Moreover, Plaintiff’s allegations do not fall within the “imminent danger”
exception to the three-strikes rule. 28 U.S.C. § 1915(g). Plaintiff does not allege facts showing
that he is in imminent danger of serious physical injury.
Therefore, § 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 does not
pay the filing fee within the 28-day period, this case will be dismissed without prejudice, but
Plaintiff will continue to be responsible for payment of the $400.00 filing fee.
January 12, 2018
/s/ Robert J. Jonker
ROBERT J. JONKER
CHIEF 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.”
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?