Opinion
Case Number: 2:13-CV-10503
03-25-2013
DAVID LYONS, Plaintiff, v. STEVEN R. FOX, et al., Defendants.
HONORABLE PAUL D. BORMAN
UNITED STATES DISTRICT JUDGE
OPINION AND ORDER DENYING LEAVE TO PROCEED IN FORMA
PAUPERIS AND DISMISSING COMPLAINT WITHOUT PREJUDICE
Michigan state prisoner David Lyons has filed a pro se civil rights complaint under 42 U.S.C. § 1983. The complaint alleges that defendants, while acting under color of state law, conspired to convict him of a crime he did not commit. Lyons seeks monetary relief. He has requested that he be permitted to proceed in forma pauperis in this case. See 28 U.S.C. § 1915(a)(1) (1996). The Court denies leave to proceed in forma pauperis and dismisses the complaint pursuant to 28 U.S.C. § 1915(g).
Indigent prisoners may seek to bring a civil action without prepayment of the fees and costs for the action. 28 U.S.C. § 1915(a)(2). A prisoner, however, may be barred from proceeding in forma pauperis in a civil action if, on three or more previous occasions, a federal court has dismissed the prisoner's action because it was frivolous or malicious or failed to state a claim for which relief may be granted. 28 U.S.C. § 1915(g) (1996); Dupree v. Palmer, 284 F.3d 1234, 1236 (11th Cir. 2002) (holding that "the proper procedure is for the district court to dismiss the complaint without prejudice when it denies the prisoner leave to proceed in forma pauperis pursuant to the provisions of § 1915(g)" because the prisoner "must pay the filing fee at the time he initiates the suit").
Lyons has filed at least three prior civil rights complaints which have been dismissed as frivolous or for failure to state a claim upon which relief may be granted. See Lyons v. Wickersham, et al., No. 2:12-cv-14353 (E.D. Mich. Dec. 18, 2012); Lyons-Bey v. Bouchard, et al., No. 2:04-cv-210 (W.D. Mich. Oct. 5, 2004); Lyons-Bey v. Palmer, et al., No. 2:02-cv-185 (W.D. Mich. Dec. 10, 2002). A plaintiff may maintain a civil action despite having had three or more civil actions dismissed as frivolous if the prisoner is "under imminent danger of serious physical injury." 28 U.S.C. § 1915(g). "[T]his exception applies only if the complaint alleges facts showing that a danger of serious physical injury exists at the time the complaint is filed." Percival v. Gerth, 443 F. App'x 944, 946 (6th Cir. 2011). Lyons' claim that defendants conspired to wrongfully convict him does not fall within the "imminent danger" exception of § 1915(g).
Accordingly, the Court DENIES Plaintiff's application for leave to proceed in forma pauperis and DISMISSES the complaint pursuant to 28 U.S.C. § 1915(g). This dismissal is without prejudice to Plaintiff filing a new complaint with payment of the filing fee.
SO ORDERED.
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PAUL D. BORMAN
UNITED STATES DISTRICT JUDGE