Harvey Preston v. Terry Wilkins et al.

Summary

The United States District Court for the Western District of Michigan denied Harvey Preston leave to proceed in forma pauperis under the Prison Litigation Reform Act’s three-strikes provision, 28 U.S.C. § 1915(g). The court concluded that Preston had not plausibly alleged an imminent danger of serious physical injury and had not paid the required filing fees. The action was dismissed without prejudice, with leave to refile upon payment of the full civil action filing fees.

Holdings

1. Plaintiff was barred from proceeding in forma pauperis because he had brought at least three prior actions that were dismissed as frivolous, malicious, or for failure to state a claim.
2. Plaintiff failed to allege facts sufficient to show that he was under an imminent danger of serious physical injury when he filed the complaint.
3. The action was properly dismissed without prejudice because Plaintiff had not paid the filing fees after being denied in forma pauperis status.

Questions Presented

1. Whether Plaintiff was barred by 28 U.S.C. § 1915(g) from proceeding in forma pauperis because he had accumulated at least three qualifying dismissals.
2. Whether Plaintiff adequately alleged that he was under imminent danger of serious physical injury so as to invoke the exception to the three-strikes rule.
3. Whether dismissal without prejudice was the proper disposition when Plaintiff was denied in forma pauperis status and had not paid the filing fees.

Disposition

dismissed