Opinion
Case No. 12-12356
06-27-2012
EUGENE SZYMANSKI, Plaintiff, v. GARY J. ZILLI, et.al., Defendants.
OPINION AND ORDER DENYING "APPLICATION TO PROCEED
WITHOUT PREPAYMENT OF FEES," DISMISSING COMPLAINT UNDER
28 U.S.C. § 1915(g), AND TERMINATING AS MOOT "MOTION FOR SPECIAL
SERVICE BY THE U.S. MARSHAL'S SERVICE ON DEFENDANTS"
On May 31, 2012, Plaintiff Eugene Szymanski, a state prisoner currently incarcerated at the Carson City Correctional Facility in Carson City, Michigan, filed a pro se complaint for mandamus against several state and federal officials. Plaintiff alleges that Defendants have conspired to lodge a detainer against him which is false and fraudulent. Plaintiff has also filed an application seeking leave to proceed without prepayment of the filing fee. See 28 U.S.C. § 1915(a)(1). Because Plaintiff has previously filed three federal actions that were dismissed as frivolous, the court concludes that Plaintiff is not eligible to proceed in forma pauperis and dismisses the complaint under 28 U.S.C. § 1915(g).
Under the Prison Litigation Reform Act a prisoner may be precluded from proceeding without prepayment of the filing fee in a civil action under certain circumstances. The statute states, in relevant part:
In no event shall a prisoner bring a civil action or appeal a judgment in a civil action or proceeding under this section, 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). A complaint for mandamus is a civil action within the meaning of this provision, Green v. Nottingham, 90 F.3d 415, 417-18 (10th Cir. 1996), so it applies to this case. If a complaint "clearly satisfie[s] the provisions of § 1915(g) at the moment of filing, the district court ha[s] no authority to consider the merits of the complaint." Shabazz v. Campbell, 12 F. App'x 329, 330 (6th Cir. 2001). In that situation, "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)." Dupree v. Palmer, 284 F.3d 1234, 1236 (11th Cir. 2002).
Plaintiff is a prolific litigator in federal court. The court's records reveal that he has filed at least three prior civil actions which have been dismissed as frivolous or for failure to state a claim upon which relief may be granted. See e.g., Szymanski v. Detroit Police Dep't, No. 96-40426 (E.D. Mich. Jan. 24, 1997); Szymanski v. Michigan, No. 97-40455 (E.D. Mich. Dec. 29, 1997); Szymanski v. Wayne Cnty. Jail, No. 96-60010 (E.D. Mich. Mar. 6, 1996); Szymanski v. Peppler, No. 89-73061 (E.D. Mich. Nov. 14, 1989). Consequently, Plaintiff is a "three striker" who cannot proceed without prepayment of the filing fee unless he can demonstrate that he is "under imminent danger of serious physical injury." 28 U.S.C. § 1915(g). Plaintiff has made no such showing. His complaint must therefore be dismissed. Accordingly,
IT IS ORDERED that Plaintiff's "Application to Proceed Without Prepayment of Fees" [Dkt. # 2] is DENIED.
IT IS FURTHER ORDERED that the complaint [Dkt. # 1] is DISMISSED pursuant to 28 U.S.C. § 1915(g). This dismissal is without prejudice to the filing of a new complaint with payment of the $350.00 filing fee.
IT IS FURTHER ORDERED that Plaintiff's "Motion for Special Service by the U.S. Marshal's Service on Defendants" [Dkt. # 3] is TERMINATED AS MOOT.
Finally, the Court concludes that an appeal from this order would be frivolous and not taken in good faith. See 28 U.S.C. § 1915(a)(3); McGore v. Wrigglesworth, 114 F.3d 601, 610-11 (6th Cir. 1997), overruled on other grounds by Jones v. Bock, 549 U.S. 199 (2007).
__________________
ROBERT H. CLELAND
UNITED STATES DISTRICT JUDGE
I hereby certify that a copy of the foregoing document was mailed to counsel of record on this date, June 27, 2012, by electronic and/or ordinary mail.
Lisa Wagner
Case Manager and Deputy Clerk
(313) 234-5522
S:\Cleland\JUDGE'S DESK\C2 ORDERS\12-12356.SZYMANSKI.Dismiss1915g.jr.set.wpd