Opinion
1:24-cv-700
08-26-2024
JOHN ELDRIDGE TRICE, Plaintiff, v. RONALD KOEHLER et al., Defendants.
OPINION
JANE M. BECKERING UNITED STATES DISTRICT JUDGE
Plaintiff John Eldridge Trice initiated this suit by filing a hybrid civil rights/habeas action. In an Order (ECF No. 6) entered on August 22, 2024, the Court indicated that it would not permit Plaintiff to pursue claims for immediate release and monetary compensation in the same lawsuit. The Court, therefore, construed the instant action as a civil rights action brought pursuant to 42 U.S.C. § 1983 and noted that Plaintiff could proceed upon his claims for monetary compensation in this action. The Court severed Plaintiff's claim for immediate release into a new case.
Plaintiff has filed a motion for leave to proceed in forma pauperis. (ECF No. 5.) 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(g), “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. Accordingly, for the reasons set forth below, this action will be dismissed without prejudice pursuant to 28 U.S.C. § 1915(g).
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 in forma pauperis status under 28 U.S.C. § 1915.” https://www.uscourts.gov/services-forms/fees/ district-court-miscellaneous-fee-schedule.
Discussion
The PLRA 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 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 Michigan federal courts. 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 Trice v. Holland, No. 1:98-cv-149 (W.D. Mich. June 15, 1998); Trice v. Tucker, No. 1:96-cv-854 (W.D. Mich. Dec. 13, 1996); Trice v. Mayer, No. 1:96-cv-779 (W.D. Mich. Oct. 22, 1996); Trice v. Clinton, No. 2:96-cv-43 (W.D. Mich. Apr. 29, 1996); Trice v. Toombs, No. 1:95-cv-860 (W.D. Mich. Feb. 5, 1996); Trice v. Ager, No. 1:94-cv-29 (W.D. Mich. Feb. 7, 1994). Although two of the dismissals were entered before enactment of the PLRA on April 29, 1996, the dismissals nevertheless count as strikes. See Wilson, 148 F.3d at 604. In addition, the Court has previously denied Plaintiff leave to proceed in forma pauperis under the three-strikes rule. See Trice v. Trump, No. 1:16-cv-1341 (W.D. Mich. Dec. 1, 2016); Trice v. Unknown Parties, No. 1:16-cv-790 (W.D. Mich. July 19, 2016); Trice v. Bush, No. 1:03-cv-622 (W.D. Mich. Oct. 14, 2003).
Moreover, Plaintiff's allegations do not fall within the “imminent danger” exception to the three-strikes rule. 28 U.S.C. § 1915(g). The Sixth Circuit set forth the following general requirements for a claim of imminent danger:
In order to allege sufficiently imminent danger, we have held that “the threat or prison condition must be real and proximate and the danger of serious physical injury must exist at the time the complaint is filed.” Rittner v. Kinder, 290 Fed.Appx. 796, 797 (6th Cir. 2008) (internal quotation marks omitted). “Thus a prisoner's
assertion that he or she faced danger in the past is insufficient to invoke the exception.” Id. at 797-98; see also [ Taylor v. First Med. Mgmt., 508 Fed.Appx. 488, 492 (6th Cir. 2012)] (“Allegations of past dangers are insufficient to invoke the exception.”); Percival v. Gerth, 443 Fed.Appx. 944, 946 (6th Cir. 2011) (“Assertions of past danger will not satisfy the ‘imminent danger' exception.”); cf. [Pointer v. Wilkinson, 502 F.3d 369, 371 n.1 (6th Cir. 2007)] (implying that past danger is insufficient for the imminent-danger exception).
In addition to a temporal requirement, we have explained that the allegations must be sufficient to allow a court to draw reasonable inferences that the danger exists. To that end, “district courts may deny a prisoner leave to proceed pursuant to § 1915(g) when the prisoner's claims of imminent danger are conclusory or ridiculous, or are clearly baseless (i.e. are fantastic or delusional and rise to the level of irrational or wholly incredible).” Rittner, 290 Fed.Appx. at 798 (internal quotation marks and citations omitted); see also Taylor, 508 Fed.Appx. at 492 (“Allegations that are conclusory, ridiculous, or clearly baseless are also insufficient for purposes of the imminent-danger exception.”).Vandiver v. Prison Health Services, Inc., 727 F.3d 580, 585 (6th Cir. 2013). A prisoner's claim of imminent danger is subject to the same notice pleading requirement as that which applies to prisoner complaints. Id. Consequently, a prisoner must allege facts in the complaint from which the Court could reasonably conclude that the prisoner was under an existing danger at the time he filed his complaint, but the prisoner need not affirmatively prove those allegations. Id.
Plaintiff is presently incarcerated with the Michigan Department of Corrections (MDOC) at the Richard A. Handlon Correctional Facility (MTU) in Ionia, Ionia County, Michigan. Plaintiff has named the following individuals as Defendants: (1) Ronald Koehler; (2) the Ypsilanti Police Department; (3) prosecutor Brian L. Mackin; and (4) public defender Mitchell H. Nelson. In his complaint, Plaintiff alleges that he is suing Defendants “for the unlawful prosecutions of two life sentences and the misrepresentation of the cases.” (Compl., ECF No. 1, PageID.1.) He contends that he is “an innocent man who[] ha[s] not killed anyone, and [he has] alibi witnesses.” (Id.) Plaintiff suggests that during his trial, the judge allowed the police to commit perjury. (Id., PageID.2.) The MDOC's Offender Tracking Information System (OTIS) indicates that Plaintiff is currently serving two life sentences imposed in 1988 after being found guilty at a jury trial of one count of second-degree murder and one count of open murder. See https://mdocweb.state.mi.us/otis2/otis2profile.aspx?mdocNumber=192845 (last visited Aug. 9, 2024). Plaintiff's allegations relate to the validity of his convictions and sentences and wholly fail to show that Plaintiff was in imminent danger of serious physical injury when he filed this complaint.
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 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.
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.
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.