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Case 2:13-cv-00285-RHB-TPG Doc #2 Filed 09/19/13 Page 1 of 3 Page ID#15

UNITED STATES OF AMERICA

UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF MICHIGAN

NORTHERN DIVISION



LARRY McGEE,

Plaintiff,

Case No. 2:13-cv-285

v.

Honorable Robert Holmes Bell

UNKNOWN PART(Y)(IES),

____________________________________/

Defendant.

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 $400.00 civil action filing fee applicable

to those who are 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 –

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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 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.

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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, having filed

more than one hundred civil actions in this Court. The Court has dismissed at least three of

Plaintiff’s lawsuits as frivolous or for failure to state a claim. See McGee v. MDOC et al., No.

1:00-cv-78 (W.D. Mich. Apr. 14, 2000); McGee v. Tyszkiewicz et al., No. 1:99-cv-132 (W.D. Mich.

Mar. 12, 1999); McGee v. McGinnis et al., No. 1:99-cv-94 (W.D. Mich. Mar. 5, 1999). In addition,

Plaintiff has been denied leave to proceed in forma pauperis in this Court on numerous occasions

because he has three strikes. 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 $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.

Date: September 19, 2013

/s/ Robert Holmes Bell
ROBERT HOLMES BELL
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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