Wilson v. 52nd District Court

Full title: TERRY L. WILSON, 137914, Plaintiff v. 52nd DISTRICT COURT (PROSECUTOR'S…

Court: United States District Court, E.D. Michigan, Southern Division

Date published: Apr 25, 2002

CIVIL ACTION NO. 02-CV-71217-DT (E.D. Mich. Apr. 25, 2002)

Opinion

CIVIL ACTION NO. 02-CV-71217-DT

April 25, 2002

OPINION AND ORDER OF SUMMARY DISMISSAL

ARTHUR J. TARNOW, United States District Judge

This matter is before the Court on Plaintiff's pro se civil rights complaint filed pursuant to 42 U.S.C. § 1983. Plaintiff has not yet been granted in forma pauperis status in this case. See 28 U.S.C. § 1915(a)(1)(1996).

On April 1, 2002, an Order to Show Cause was issued by the Court, giving plaintiff fourteen days from the date of the Order to explain in writing why his complaint should not be dismissed in this case pursuant to 28 U.S.C. § 1915(g). The Order to Show Cause was based upon the fact that a United States District Court had dismissed 3 or more of plaintiff's cases for being frivolous, malicious, or for failing to state a claim upon which relief can be granted. See:

Case Number Defendant(s) Date Dismissed U.S. District Judge ___________ ____________ ______________ ___________________ 92-CV-77258 Michigan Parole 1/25/93 Avern Cohn Board U.S. District Court for the Eastern District of Michigan 92-CV-72005 Taylor 7/31/92 Horace W. Gilmore U.S. District Court for the Eastern District of Michigan 92-CV-72004 Taylor 7/31/92 Horace W. Gilmore U.S. District Court for the Eastern District of Michigan 92-CV-72001 Taylor 7/31/92 Horace W. Gilmore U.S. District Court for the Eastern District of Michigan 92-CV-71999 Brown 7/31/92 Horace W. Gilmore U.S. District Court for the Eastern District of Michigan 92-CV-60455 Michigan Dept. 1/20/93 George LaPlata of Corrections U.S. District Court for the Eastern District of Michigan 90-CV-73231 Jabe 11/21/90 Barbara K. Hackett U.S. District Court for the Eastern District of Michigan 90-CV-70731 State Prison for 3/30/90 George E. Woods Southern Michigan, Grievance Office U.S. District Court for the Eastern District of Michigan This case was originally assigned to Judge Avern Cohn. On April 5, 2002, this case was re-assigned to this Court as a companion case to Wilson v. Oakland County Prosecutor's Office. U.S.D.C. 02-71215-DT. On April 19, 2002, plaintiff filed a response to the Order to Show Cause.

Under the Prison Litigation Reform Act of 1995("PLRA"), Pub.L. No. 104-134, 110 Stat. 1321 (April 26, 1996), the Court may dismiss a case if, on 3 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). The PLRA thus precludes the filing of in forma pauperis civil actions by a prisoner who has had three similar cases dismissed for being frivolous, malicious, or for failing to state a claim upon which relief can be granted. 28 U.S.C. § 1915 (g); Thaddeus-X v. Blatter, 175 F.3d 378, 400 (6th Cir. 1999); Witzke v. Hiller 966 F. Supp. 538, 540 (E.D. Mich. 1997). The three strikes provision of the PLRA prohibits a prisoner, who has had three prior suits dismissed for being frivolous, from proceeding in forma pauperis in a civil rights suit absent an allegation that the prisoner is in imminent danger of serious physical injury. McFadden v. Parpan, 16 F. Supp.2d 246, 247 (E.D.N Y 1998). A federal district court may sua sponte raise the three strikes provision of the PLRA on its own initiative. Witzke v. Hiller, 966 F. Supp. at 539.

In the present case, plaintiff is unable to show that his case does not come within the three strikes provision of the PLRA. Although plaintiff filed an answer to the order to show cause, plaintiff does not deny that these eight prior cases were dismissed for being frivolous, malicious, or for failing to state a claim for which relief could be granted. Although plaintiff alleges that he is in imminent danger of serious physical injury, plaintiff does not specify the physical injury that he is facing. The Court further observes that plaintiff's civil rights complaint alleges that the prosecuting attorney used false or inaccurate information to enhance his misdemeanor retail fraud charge to a felony retail fraud charge based upon plaintiff having a prior retail fraud conviction.

The imminent danger exception to the "three strikes" rule contained in 28 U.S.C. § 1915 (g) may be invoked by a prisoner only to seek relief from a danger which is imminent at the time that the complaint is filed. Abdul-Akbar v. McKelvie, 239 F.3d 307, 312 (3rd Cir. 2001); cert. den. 121 S.Ct. 2600 (2001). A district court is permitted to discredit factual claims of imminent danger that are "clearly baseless". Gibbs v. Cross, 160 F.3d 962, 967 (3rd Cir. 1998). Conclusory allegations do not bring a prisoner within the imminent danger exception to the three strikes rule. See e.g. Shephard v. Marbley, 23 Fed. Appx. 491, 492 (6th Cir. 2001).

In the present case, plaintiff has failed to show that he is in imminent danger of serious physical injury to permit him to proceed in forma pauperis. First, plaintiff's lawsuit is against the 52nd District Court and/or the prosecuting attorney for the City of Troy. Any allegations of constitutional deprivations against the plaintiff by the defendants are insufficient to obtain relief under the imminent danger exception, since his complaint targets persons or parties who plaintiff has failed to show have any control over his current conditions of confinement at the Hiawatha Correctional Facility in Kincheloe, Michigan. See Day v. Maynard, 200 F.3d 665, 667 (10th Cir. 1999); Peoples v. Gilbert, 2001 WL 1219070, *2 (E.D. Mich. September 14, 2001). Secondly, plaintiff does not fall within the "imminent danger of serious physical injury" exception to § 1915(g), because his complaint and his answer to the Order to Show Cause fail to specify the general nature of the asserted imminent harm that he claims to be facing. See White v. State of Colorado, 157 F.3d 1226, 1232 (10th Cir. 1998). Because plaintiff does not explain how the prosecutor's use of false information to enhance his sentence in his criminal case places him in imminent danger of serious physical injury, he has failed to make a credible allegation that he is in imminent danger of serious physical harm and therefore does not come within the exception to § 1915(g). Id.

Because plaintiff has not alleged any facts which would establish that he is in imminent danger of serious physical injury, he does not come within the exception to the mandate of 28 U.S.C. § 1915(g), which prohibits him from proceeding in forma pauperis in light of his eight prior frivolity dismissals. Mulazim v. Michigan Dept of Corrections, 28 Fed. Appx. 470, 472 (6th Cir. 2002). Because plaintiff does not allege any immediate or specific danger of future serious physical injury, his complaint will be dismissed where he has eight prior lawsuits which have been dismissed for being frivolous, malicious, or for failure to state a claim upon which relief can be granted. Reid v. Tirey, 172 F.3d 49, 1998 WL 898842, *1 (6th Cir. December 17, 1998). Plaintiff may, however, resume any of these claims dismissed under § 1915(g) if he decides to pay the filing fee under the fee provisions of 28 U.S.C. § 1914.Witzke v. Hiller 966 F. Supp. at 540.

ORDER

IT IS THEREFORE HEREBY ORDERED that Plaintiff TERRY L. WILSON'S in forma pauperis status is REVOKED pursuant to 28 U.S.C. § 1915(g) .

IT IS FURTHER ORDERED that Plaintiff, TERRY L. WILSON'S complaint is DISMISSED without prejudice to being refiled upon payment of the applicable filing fee pursuant to 28 U.S.C. § 1914 .