UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

LAVERE BRYANT and 

ASTRIN CHANDLER, 

 

 Plaintiffs, Civil Action No. 14-14181 

 Honorable Denise Page Hood 

 Magistrate Judge David R. Grand 

v. 

 

SALLY JENKINS, 

DANIELLE HAGAMAN-CLARK, 

LEAH BRONSON and, 

FLAG STAR BANK, 

 

 Defendants. 

__________________________________/ 

REPORT AND RECOMMENDATION TO REVOKE PLAINTIFF BRYANT’S IN 

FORMA PAUPERIS STATUS AND TO DISMISS HIS CLAIMS WITHOUT PREJUDICE 

I. REPORT 

A. Background 

Plaintiff Lavere Bryant (“Bryant”) is a prisoner who is currently incarcerated at the 

Bellamy Creek Correctional Facility (“IBC”) in Ionia, Michigan. On October 30, 2014, Bryant 

(along with co-plaintiff Astrin Chandler) filed a pro se complaint pursuant to 12 U.S.C. § 3401 

and 42 U.S.C. § 1983, purporting to set forth claims for unlawful disclosure of his financial 

records and unlawful search and seizure. (Doc. #1). Bryant requested and was summarily 

granted in forma pauperis status pursuant to 28 U.S.C. § 1915(a). (Doc. #5). On February 17, 

2015, the case was referred to the undersigned for pretrial case management. (Doc. #8). 

Summonses have not yet been served, as plaintiffs only recently requested that the Court order 

the Marshal’s office to serve the defendants. (Doc. #14). 

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On April 3, 2015, Bryant filed a document entitled “Application for Prisoner to Proceed 

Without Prepayment of Fees/Costs; Application to Proceed in District Court Without Prepaying 

Fees/Cost; Complaint Pursuant to 42 U.S.C. 1983,” in which he explains that he had previously 

filed at least eleven cases in the Western Michigan District of Michigan since 2008, each of 

which was dismissed for failure to state a claim. (Doc. #15 at 3). Apparently anticipating 

challenge to his request, Bryant argues, that the Prison Litigation Reform Act’s (“PLRA”), 28 

U.S.C. § 1915, “three strike rule does not apply [because he] was a pretrial detainee [when he 

commenced this action].” (Doc. #15 at 3). 

B. Legal Standards 

Congress enacted 28 U.S.C. § 1915, the federal statute permitting plaintiffs to file 

complaints in forma pauperis, “to ensure that indigent litigants have meaningful access to the 

federal courts” by waiving the filing fees that might otherwise prevent meritorious suits from 

being lodged. Neitzke v. Williams, 490 U.S. 319, 324 (1989). However, in recognition of the 

potential for abuses of the system, Congress passed the PLRA, codified in relevant part as 28 

U.S.C. § 1915(g). Under that section of the PLRA, a prisoner who files a meritless lawsuit will 

acquire a “strike.” A prisoner who acquires three “strikes” is generally prohibited from filing 

future litigation in forma pauperis. The relevant portion of the three strikes statute provides: 

In no event shall a prisoner bring a civil action . . . 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 on which relief may be granted, unless the prisoner is under 

imminent danger of serious physical injury. 

28 U.S.C. § 1915(g). The statute thus bars a prisoner litigant with “three strikes” from filing a 

complaint in forma pauperis unless he properly alleges that he is currently experiencing 

imminent danger of serious physical injury. Vandiver v. Vasbinder, 416 F. App’x 560, 562 (6th

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Cir. 2011). The statute makes clear that the term “prisoner” includes “any person incarcerated or 

detained in any facility who is accused of, convicted of, sentenced for, or adjudicated delinquent 

for, violations of criminal law or the terms and conditions of parole, probation, pretrial release, 

or diversionary program.” 28 U.S.C. § 1915(h) (emphasis added). 

C. Analysis 

 1. Bryant Has Acquired Three Strikes 

 Bryant has previously filed at least three prisoner civil rights lawsuits which were 

dismissed: Lee-Bryant v. Sindles, Case No. 2:08-cv-121, 2009 WL 528959 (W.D. Mich. Mar. 2, 

2009) (dismissed for failure to state a claim); Lee-Bryant v. Beseau, Case No. 2:08-cv-138, 2009 

WL 980810 (W.D. Mich. Apr. 9, 2009) (dismissed for failure to state a claim); Lee-Bryant v. 

Schertz, Case No. 2:08-cv-150, 2008 WL 5102968 (W.D. Mich. Dec. 1, 2008) (dismissed for 

failure to state a claim). Accordingly, Bryant falls within the purview 28 U.S.C. § 1915(g)’s 

three strikes provision. 

2. Bryant’s Argument That the Three Strikes Rule Does Not Apply Lacks Merit 

 Relying on Troville v. Venz, 303 F.3d 1256 (11th Cir. 2002), Bryant argues that the 

PLRA’s three strikes provision does not apply to him because he was a pretrial detainee at the 

time he filed his instant lawsuit. (Doc. #15 at 3). But Bryant misapprehends Troville; that court 

did not hold that the three strikes rule is inapplicable to pretrial criminal detainees like Bryant1

, 

but rather that it is inapplicable to civil detainees. Id. at 1261. Indeed, pretrial criminal detainees 

clearly fall within the statute’s definition of a “prisoner” because that term expressly includes 

 

1

 Bryant repeatedly refers to himself as a “prisoner” in his filings, and at the heart of his case is 

the fact that he was apparently charged with a serious crime. (Doc. #1 at ¶¶ 12, 18) (“Plaintiff 

Bryant is suspected of committing robbery-double homicide...” and making reference to his 

“criminal defense attorney”). The Court also notes, again, that in each of the three prior district 

court decisions cited above in which Bryant’s claims were dismissed, he was referred to as a 

“prisoner.” 

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“any person incarcerated or detained in any facility who is accused of ... violations of criminal 

law ...” 28 U.S.C. § 1915(h). While the statute itself is clear enough, numerous courts have 

upheld this interpretation of it. See e.g., Branham v. Cook, 48 F. App’x 995, 996 (6th Cir. 2002) 

(“§ 1915(g) specifically applies to pretrial detainees.” (citing 28 U.S.C. § 1915(h)); Page v. 

Torrey, 201 F.3d 1136, 1140 (9th Cir. 2000) (holding that individuals detained as a result of 

being accused or convicted of criminal offenses at the time they seek to file civil actions are 

prisoners for purposes of the PLRA); Hafed v. Federal Bureau of Prisons, 635 F.3d 1172, 1177 

(10th Cir. 2011) (holding that detainee awaiting trial qualified as prisoner for purposes of 

PLRA); Kalinowski v. Bond, 358 F.3d 978, 979 (7th Cir. 2004) (holding that pretrial detainees 

are prisoners for purposes of the PLRA because they are detained while accused of violations of 

criminal law). Similarly, in Richards v. United States, 2011 WL 2935993 (E.D. Mich. Jul. 20, 

2011), the district court applied the three strikes rule to a pretrial detainee who was awaiting 

sentencing. 

This Court agrees with the reasoning of these courts and finds that pretrial criminal 

detainees qualify as prisoners for purposes of the PLRA’s three strikes rule. Thus, despite the 

fact that Bryant, by his own admission, filed his instant lawsuit while a pretrial detainee, the 

Court finds that the PLRA’s “three strikes” provision applies to his instant action. 

 Because Bryant filed complaints resulting in at least “three strikes” under 28 U.S.C. § 

1915(g), and has not alleged that he qualifies for the statute’s “imminent danger” exception, his 

in forma pauperis status should be revoked and his complaint should be dismissed without 

prejudice. Shabazz v. Campbell, 12 F. App’x 329 (6th Cir. 2001). 

II. RECOMMENDATION

 For the foregoing reasons, IT IS RECOMMENDED that the Court VACATE its prior 

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order granting Plaintiff Bryant’s Application to Proceed Without Prepayment of Fees and Costs 

(Doc. #5), REVOKE Bryant’s in forma pauperis status, and DISMISS BRYANT’S CLAIMS 

WITHOUT PREJUDICE. 

Dated: June 22, 2015 s/David R. Grand 

Ann Arbor, Michigan DAVID R. GRAND 

 United States Magistrate Judge 

NOTICE TO THE PARTIES REGARDING OBJECTIONS 

Within 14 days after being served with a copy of this Report and Recommendation, any 

party may serve and file specific written objections to the proposed findings and 

recommendations set forth above. See 28 U.S.C. §636(b)(1); Fed. R. Civ. P. 72(b)(2); E.D. 

Mich. LR 72.1(d)(1). Failure to timely file objections constitutes a waiver of any further right of 

appeal. Thomas v. Arn, 474 U.S. 140, (1985); United States v. Sullivan, 431 F.3d 976, 984 (6th 

Cir. 2005). Only specific objections to this Report and Recommendation will be preserved for 

the Court’s appellate review; raising some objections but not others will not preserve all 

objections a party may have. See Smith v. Detroit Fed’n of Teachers Local 231, 829 F.2d 1370, 

1373 (6th Cir. 1987); see also Frontier Ins. Co. v. Blaty, 454 F.3d 590, 596-97 (6th Cir. 2006). 

Copies of any objections must be served upon the Magistrate Judge. See E.D. Mich. LR 

72.1(d)(2). 

A party may respond to another party’s objections within 14 days after being served with 

a copy. See Fed. R. Civ. P. 72(b)(2); 28 U.S.C. §636(b)(1). Any such response should be 

concise, and should address specifically, and in the same order raised, each issue presented in the 

objections. 

CERTIFICATE OF SERVICE

 The undersigned certifies that the foregoing document was served upon counsel of record 

and any unrepresented parties via the Court’s ECF System to their respective email or First Class 

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U.S. mail addresses disclosed on the Notice of Electronic Filing on June 22, 2015. 

 s/Eddrey O. Butts 

 EDDREY O. BUTTS 

 Case Manager 

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