Middlebrook #351947 v. Martti et al

Filing 5

OPINION ; signed by District Judge Paul L. Maloney (Judge Paul L. Maloney, cmc)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
NORTHERN DIVISION
______
MARCUS DONTE MIDDLEBROOK,
Plaintiff,
v.

Case No. 2:24-cv-16
Honorable Paul L. Maloney

JON MARTTI et al.,
Defendants.

____________________________/
OPINION
This is a civil rights action brought by a state prisoner under 42 U.S.C. § 1983. Plaintiff
seeks leave to proceed in forma pauperis. (ECF No. 2.) However, Plaintiff is barred from
proceeding in forma pauperis under 28 U.S.C. § 1915(g). Where a plaintiff is ineligible for in
forma pauperis status under 28 U.S.C. § 1915, “he must make full payment of the filing fee before
his action may proceed.” In re Alea, 286 F.3d 378, 380 (6th Cir. 2002).
Plaintiff has filed at least three lawsuits that were dismissed as frivolous, malicious, or for
failure to state a claim, and Plaintiff has not demonstrated that he is in imminent danger of serious
physical injury to allow him to proceed in forma pauperis in this action. Further, Plaintiff has not
paid the $405.00 civil action filing fees applicable to those not permitted to proceed in forma
pauperis.1 Accordingly, for the reasons set forth below, this action will be dismissed without
prejudice pursuant to 28 U.S.C. § 1915(g).

1

The filing fee for a civil action is $350.00. 28 U.S.C. § 1914(a). The Clerk is also directed to
collect a miscellaneous administrative fee of $55.00. 28 U.S.C. § 1914(b); https://www.uscourts.
gov/services-forms/fees/district-court-miscellaneous-fee-schedule. However, the miscellaneous
administrative fee “does not apply to applications for a writ of habeas corpus or to persons granted

Discussion
The Prison Litigation Reform Act (PLRA), Pub. L. No. 104-134, 110 Stat. 1321 (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

in forma pauperis status under 28 U.S.C. § 1915.” https://www.uscourts.gov/services-forms/fees/
district-court-miscellaneous-fee-schedule.
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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).
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 Middlebrook v. Wellman, No. 2:23-cv-202 (W.D.
Mich. Dec. 1, 2023); Middlebrook v. Perttu, No. 2:23-cv-215 (W.D. Mich. Nov. 28, 2023);
Middlebrook v. Pelto, No. 2:23-cv-173 (W.D. Mich. Oct. 31, 2023); Middlebrook v. Novak, No.
1:18-cv-1139 (W.D. Mich. Nov. 9, 2018). Moreover, on at least one occasion, the Court has denied
Plaintiff leave to proceed in forma pauperis and dismissed his action without prejudice because he
has accrued three “strikes” for purposes of § 1915(g). See Middlebrook v. Smith, 2:23-cv-258
(W.D. Mich. Jan. 24, 2024).
Moreover, Plaintiff’s allegations do not fall within the “imminent danger” exception to the
three-strikes rule. 28 U.S.C. § 1915(g). Plaintiff alleges that in 2020, Defendants terminated him
from his job as a unit porter. (ECF No. 1, PageID.4.) Plaintiff contends that he was terminated
from his job because he is homosexual. (Id., PageID.6.) Based on these allegations, Plaintiff avers
that Defendants violated his rights under the Fourteenth Amendment’s Equal Protection Clause.
Plaintiff, however, does not allege facts showing that he is presently in imminent danger of any
serious physical injury.
Accordingly, Plaintiff is barred from proceeding in forma pauperis under § 1915(g).
Plaintiff also has not paid the $405.00 civil action filing fees applicable to those not permitted to
proceed in forma pauperis. The Court will therefore dismiss this action without prejudice. See
Dupree v. Palmer, 284 F.3d 1234, 1236 (11th Cir. 2002) (“[T]he proper procedure is for the district

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court to dismiss the complaint without prejudice when it denies the prisoner leave to proceed in
forma pauperis pursuant to the three strikes provision of § 1915(g).”). Plaintiff is free to refile his
complaint as a new action in this Court if he submits the filing fees at the time that he initiates the
new action.
Conclusion
For the foregoing reasons, the Court will deny Plaintiff leave to proceed in forma pauperis.
The Court will dismiss this action without prejudice to Plaintiff’s right to refile his complaint as a
new action in this Court with the full civil action filing fees.2
For the same reasons that the Court dismisses the action, the Court discerns no good-faith
basis for an appeal. See 28 U.S.C. § 1915(a)(3); McGore v. Wrigglesworth, 114 F.3d 601, 611 (6th
Cir. 1997). Further, should Plaintiff appeal this decision, he must pay the $605.00 appellate filing
fee in a lump sum, because he is prohibited from proceeding in forma pauperis on appeal by 28
U.S.C. § 1915(g).
An order and judgment consistent with this opinion will be entered.

Dated:

February 7, 2024

/s/ Paul L. Maloney
Paul L. Maloney
United States District Judge

2

Because Plaintiff has the opportunity to refile his complaint as a new action in this Court by
paying the full civil action filing fees at the time of filing the new action, the Court will not assess
the district court filing fees in the present action.
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