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UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

EARLAND J. COLLINS,

Plaintiff,

CASE NO. 2:09-CV-12858

v. HONORABLE MARIANNE O. BATTANI

HARPER WOODS POLICE DEPT.,

Defendant.

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OPINION AND ORDER DENYING LEAVE TO PROCEED WITHOUT

PREPAYMENT OF THE FILING FEE AND DISMISSING COMPLAINT

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

to 42 U.S.C. § 1983. Plaintiff seeks leave to proceed without prepayment of the filing fee for

this action. See 28 U.S.C. § 1915(a)(1). On August 4, 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 August 31, 2009,

Plaintiff corrected the filing deficiency but did not respond to the show cause portion of the

Court’s order.

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 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

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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 responded to the show cause order and his complaint concerns alleged

police misconduct and his criminal proceedings. 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, officers, and employees if the complaint is “frivolous, malicious,

or fails to state a claim upon which relief may be granted.”

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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/Marianne O. Battani 

MARIANNE O. BATTANI

UNITED STATES DISTRICT JUDGE

Dated: November 3, 2009

CERTIFICATE OF SERVICE

I hereby certify that on the above date a copy of this Opinion and Order was served upon

the Petitioner, Earland J. Collins, via ordinary U.S. Mail.

s/Bernadette M. Thebolt

Case Manager

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