Brooks v. Walsh et al, No. 2:2013cv14453 - Document 6 (E.D. Mich. 2013)

Court Description: OPINION AND ORDER Denying 2 APPLICATION [MOTION] to Proceed without prepaying fees or costs and DISMISSING CASE. Signed by District Judge Sean F. Cox. (JMcC)

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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION CHRISTOPHER BROOKS, No. 251955 Plaintiff, CASE NO. 2:13-CV-14453 HONORABLE SEAN F. COX v. LIEUTENANT WALSH, ET AL., Defendants. / OPINION AND ORDER DENYING PLAINTIFF S APPLICATION FOR LEAVE TO PROCEED WITHOUT PREPAYMENT OF THE FILING FEE AND DISMISSING THE CIVIL RIGHTS COMPLAINT Michigan state prisoner Christopher Brooks ( Plaintiff ) has filed a pro se civil rights complaint under 42 U.S.C. § 1983 and an application to proceed without prepayment of the $350.00 filing fee for this action. See 28 U.S.C. § 1915(a)(1). Plaintiff names ten defendants. He seeks injunctive relief in the form of a reclassification of his security risk level and the reversal of prison misconduct charges. Under the Prison Litigation Reform Act ( PLRA ), Pub. L. No. 104-134, 110 Stat. 1321(1996), a prisoner is prevented from proceeding in forma pauperis 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. 42 U.S.C. § 1915(g). In short, this three strikes provision allows the Court to dismiss a case where the prisoner seeks to proceed in forma pauperis, if, on three or more previous occasions, a federal court has 1 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 ). Plaintiff 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 Brooks v. Baird, No. 1:01-cv-00729 (W.D. Mich. January 2, 2002); Brooks v. Hay, No. 2:03-cv-00073 (W.D. Mich. May 6, 2003); and Brooks v. Luckey, No. 01-cv-72751 (E.D. Mich. September 13, 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. To establish that his complaint falls within the statutory exception to the three strikes rule, a prisoner must allege that he is under imminent danger at the time that he seeks to file his complaint and proceed in forma pauperis. Vandiver v. Vasbinder, No. 08-2602, 416 F. App x561 (6th Cir. Mar. 28, 2011); see also Malik v. McGinnis, 293 F.3d 559, 562 (2d Cir. 2002)(holding that imminent danger exception requires that the danger exist at time complaint is filed); Ashley v. Dilworth, 147 F.3d 715, 717 (8th Cir. 1998) (plaintiff sufficiently alleged imminent danger of serious physical injury where he claimed that he was placed near inmates on his enemy list and subject to ongoing danger); Banos v. O Guin, 144 F.3d 883, 885 (5th Cir. 1998) (past body cavity searches failed to establish imminent danger of serious physical injury). Here, Plaintiff s complaint does not allege that he is under imminent danger of serious physical injury. 2 Accordingly, the Court DENIES Plaintiff s application for leave to proceed without prepayment of the filing fee. Additionally, the Court 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. Dated: December 4, 2013 S/ Sean F. Cox Sean F. Cox U. S. District Court Judge I hereby certify that on December 4, 2013, the foregoing document was served upon counsel of record by electronic means and upon Christopher Brooks by First Class Mail at the address below: Christopher Brooks 251955 Saginaw Correctional Facility 9625 Pierce Road Freeland, MI 48623 Dated: December 4, 2013 S/ J. McCoy Case Manager 3

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