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UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

EARLAND J. COLLINS,

Plaintiff,

CASE NO. 2:09-CV-13535

v. HONORABLE PAUL D. BORMAN

CARL L. COLLINS III, 

Defendant.

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OPINION AND ORDER DENYING LEAVE TO PROCEED WITHOUT

PREPAYMENT OF THE FILING FEE, DISMISSING COMPLAINT,

AND DENYING MOTION FOR U.S. MARSHAL TO SERVE COMPLAINT

This matter is before the Court on Plaintiff’s pro se civil rights complaint filed pursuant to

42 U.S.C. § 1983, as well as his motion for the U.S. Marshal to serve the complaint upon the

defendant. Plaintiff seeks leave to proceed without prepayment of the filing fee for this action. See

28 U.S.C. § 1915(a)(1). On September 14, 2009, the Court issued an order requiring Plaintiff to

correct a filing deficiency and to show cause why his complaint should not be dismissed pursuant

to the “three strikes” provision of 28 U.S.C. § 1915(g). On October 1, 2009, Plaintiff submitted a

response to the Court’s order consisting of a trust account statement. Plaintiff did not submit the

requested affidavit of indigence with an authorization to withdraw funds from his prison account

nor did he respond to the show cause portion of the Court’s order.

Plaintiff has failed to correct the filing deficiency in this case. Moreover, under the Prison

Litigation Reform Act (“PLRA”), the Court may dismiss a case if, on three (3) or more previous

occasions, a federal court has dismissed the incarcerated plaintiff’s action because it was frivolous

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or malicious or failed to state a claim upon which relief may be granted. See 28 U.S.C. § 1915(g).

The Court’s database reveals that Plaintiff has filed at least three (3) prior cases in federal court

which have been dismissed as frivolous or for failure to state a claim upon which relief may be

granted. See:

Case No. Defendant(s) Dismissal Date U.S. District Judge

08-CV-14881 Wayne Co. Pros. 12/22/2008 Paul D. Borman

09-CV-11785 Warren Police Dept. 06/04/2009 Nancy G. Edmunds

09-CV-12315 Frank Murphy Hall 06/22/2009 Nancy G. Edmunds

Plaintiff has not challenged these dismissals in response to the Court’s show cause order and

his complaint concerns perceived misconduct by legal counsel. He neither alleges nor establishes

that he “is under imminent danger of serious physical injury” so as to fall within the exception to

the three strikes provision set forth in 28 U.S.C. § 1915(g). Plaintiff has thus failed to establish that

he should be allowed to proceed on his complaint in forma pauperis despite the fact that he has had

more than three prior lawsuits dismissed as frivolous or for failure to state a claim upon which relief

may be granted.

Accordingly, the Court DENIES Plaintiff’s request for leave to proceed without prepayment

of the filing fee. Plaintiff is not authorized to proceed before this Court in forma pauperis pursuant

to 28 U.S.C. § 1915(g). Additionally, the Court DISMISSES Plaintiff’s complaint 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. The Court notes that any such complaint will be reviewed to determine

whether it should be served upon the defendant or summarily dismissed under 28 U.S.C. §

1915A(b), which requires the Court to dismiss a complaint brought against governmental entities,

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officers, and employees if the complaint is “frivolous, malicious, or fails to state a claim upon which

relief may be granted.” Given this determination, the Court also DENIES Plaintiff’s motion for the

U.S. Marshal to serve the complaint upon the defendant.

Lastly, the Court concludes that an appeal from this order would be frivolous and, therefore,

cannot be taken in good faith. See 28 U.S.C. § 1915(a)(3); see also McGore v. Wrigglesworth, 114

F.3d 601, 610-11 (6th Cir. 1997).

IT IS SO ORDERED.

s/Paul D. Borman 

PAUL D. BORMAN

UNITED STATES DISTRICT JUDGE

Dated: October 30, 2009

CERTIFICATE OF SERVICE

Copies of this Order were served on the attorneys of record by electronic means or U.S. Mail on

October 30, 2009.

s/Denise Goodine 

Case Manager

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