Opinion
24-cv-12737
11-18-2024
DERRICK LEE CARDELLO-SMITH, Plaintiff, v. SEAN COMBS, ET AL., Defendants.
OPINION AND ORDER DISMISSING CASE WITHOUT PREJUDICE
HON. BRANDY R. MCMILLION, JUDGE
This matter is before the Court on the plaintiff's pro se civil rights complaint filed pursuant to 42 U.S.C. § 1983. Plaintiff Derrick Lee CardelloSmith (“Cardello-Smith”) is a prisoner in the custody of the Michigan Department of Corrections. Cardello-Smith has filed an application to proceed in forma pauperis. ECF No. 7. Upon review of Cardello-Smith's substantial litigation history in the federal courts, the Court concludes that he may not proceed in forma pauperis under 28 U.S.C. § 1915(g) and the case will be dismissed without prejudice.
I.
A party bringing a civil action must either (1) pay the filing fee, see 28 U.S.C. § 1914(a); or (2) seek leave to proceed without prepayment of the filing fee, see 28 U.S.C. § 1915 (proceedings in forma pauperis). The filing fee for a civil action is $350. See 28 U.S.C. § 1914(a).Unlike other civil litigants, prisoner-plaintiffs are not entitled to a complete waiver of the filing fee if they are granted in forma pauperis status. Instead, the prisoner-plaintiff is permitted to proceed by paying the filing fee in installments until the full fee has been paid. 28 U.S.C. § 1915(b). If a prisoner wishes to proceed in forma pauperis, the prisoner must file a certified trust account statement for the six-month period preceding the filing of the complaint and an affidavit of indigence. 28 U.S.C. § 1915(a)(2).
Under § 1914(b) and the United States Courts Schedule of Fees, an administrative fee of $55 for filing any civil case also is required. See United States Courts, District Court Miscellaneous Fee Schedule, https://www.uscourts.gov/services-forms/fees/district-court-miscellaneous-fee-schedule (last visited November 13, 2024). The $55 administrative fee does not apply if leave to proceed in forma pauperis is granted.
A prisoner may not proceed in forma pauperis where, on three or more previous occasions, a federal court dismissed the incarcerated plaintiff's action because it was frivolous or malicious or failed to state a claim for which relief may be granted. See 28 U.S.C. § 1915(g) (1996); Thaddeus-X v. Blatter, 175 F.3d 378, 400 (6th Cir. 1999). The only exception to the three-strikes rule is if the complaint plausibly alleges an “imminent danger of serious physical injury.” 28 U.S.C. § 1915(g). “Courts may sua sponte apply the three-strikes rule and take judicial notice of a plaintiff's prior dismissals.” White v. Sturm, F.Supp.3d __,__, 2024 WL 2963781, at *1 (E.D. Mich. June 12, 2024) (citations omitted).
The PLRA's three-strikes rule clearly applies to Cardello-Smith, as he has had at least seven civil rights complaints dismissed for being frivolous or malicious or for failing to state a claim. Smith v. Google, 2:21-cv-11489, 2021 WL 3164282 (E.D. Mich. July 27, 2021); North v. Scanlon, No. 1:21-cv-518, 2021 WL 2934834 (W.D. Mich. July 13, 2021); Smith v. Penman, et. al., No. 2:20-cv-12052, 2021 WL 634733 (E.D. Mich. Feb. 18, 2021); Smith, et. al. v. Unis, et. al., No. 2:19-cv-12219, 2019 WL 3958394 (E.D. Mich. Aug. 22, 2019); Smith v. Hall et al., No. 1:18-cv-277, 2018 WL 1602633 (W.D. Mich. Apr. 3, 2018); Smith v. Lemaire, No. 1:14-cv-644, 2015 WL 6133144 (W.D. Mich. Oct. 16, 2015); Smith v. Wayne Cnty. Prosecutor's Office, et al., No. 2:09-cv-12287, (E.D. Mich. June 25, 2009).
Cardello-Smith also has been made aware that he is a three-striker because he has been denied leave to proceed in forma pauperis as a three-striker on multiple occasions. See Smith v. Washington, No. 20-1211, 2021 WL 302614 (W.D. Mich. Jan. 29, 2021); Smith v. Writeaprisoner.com, Inc., No. 201201, 2021 WL 210716 (W.D. Mich. Jan. 21, 2021); Smith v. Penman, No. 181212, 2018 WL 6697270 (W.D. Mich. Dec. 20, 2018).
Cardello-Smith, therefore, may not proceed without prepaying fees and costs unless he satisfies the imminent-danger exception to the three-strikes rule. The complaint alleges that “Sean Combs did sexually assault the plaintiff after drugging a drink given to and consumed by the plaintiff in 1997” and that Combs conspired with the other named defendants to conceal the crime. ECF No. 1, PageID.1. Cardello-Smith's claims concern past events and he does not claim to be in imminent danger of serious physical injury. Therefore, he may not proceed under the imminent-danger exception to the three-strikes bar.
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) (emphasis added). Because Cardello-Smith has not paid the full fee, his complaint will be dismissed without prejudice.
II.
For the reasons stated, the complaint is DISMISSED WITHOUT PREJUDICE to the filing of a new complaint with full payment of the filing fee ($350.00) and the administrative fee ($55.00); and Cardello-Smith's Application to Proceed Without Prepaying Fees or Costs (ECF NO. 7) is DENIED. Cardello-Smith also filed a “Notice of Removal” requesting transfer of this case to the Southern District of New York (ECF No. 6); and given the Court's dismissal, Cardello-Smith is free to refile his case in that district with the proper payment of the filing and administrative fee. The requested Notice of Removal (ECF No. 6) is therefore DENIED AS MOOT.
The Court concludes that it has properly applied the “three strikes” provision of 28 U.S.C. § 1915(g) such that an appeal from this order would be frivolous and cannot be taken in good faith. See 28 U.S.C. § 1915(a)(3).
IT IS SO ORDERED.