Perry v. Berrien County Prosecutor's Office et al

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
______
JAMIE PHILLIP PERRY,
Plaintiff,
v.
BERRIEN COUNTY PROSECUTOR'S
OFFICE et al.,
Defendants.
____________________________/
Case No. 1:26-cv-1736
Honorable Robert J. Jonker
OPINION
This is a civil action brought by a detainee at the Berrien County Jail in St. Joseph,
Michigan. Plaintiff has filed a motion for leave to proceed in forma pauperis. (ECF No. 2.)
Nevertheless, Plaintiff is barred from proceeding in forma pauperis under 28 U.S.C. § 1915(g).
Where a plaintiff is ineligible for in forma pauperis status under 28 U.S.C. § 1915, “he must make
full payment of the filing fee before his action may proceed.” In re Alea, 286 F.3d 378, 380 (6th
Cir. 2002).
Plaintiff has filed at least three lawsuits that were dismissed as frivolous, malicious, or for
failure to state a claim, and Plaintiff has not demonstrated that he is in imminent danger of serious
physical injury to allow him to proceed in forma pauperis in this action. Further, as noted above,
Plaintiff has not paid the $405.00 civil action filing fees applicable to those not permitted to
proceed in forma pauperis.1 Accordingly, for the reasons set forth below, this action will be
dismissed without prejudice pursuant to 28 U.S.C. § 1915(g).
1 The filing fee for a civil action is $350.00. 28 U.S.C. § 1914(a). The Clerk is also directed to
collect 	a 	miscellaneous 	administrative 	fee 	of 	$55.00. 	28 	U.S.C. 	§ 	1914(b);
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Discussion
The Prison Litigation Reform Act (PLRA), Pub. L. No. 104-134, 110 Stat. 1321 (1996),
amended the procedural rules governing a prisoner’s request for the privilege of proceeding in
forma pauperis. As the Sixth Circuit has stated, the PLRA was “aimed at the skyrocketing numbers
of claims filed by prisoners–many of which are meritless–and the corresponding burden those
filings have placed on the federal courts.” Hampton v. Hobbs, 106 F.3d 1281, 1286 (6th Cir. 1997).
For that reason, Congress created economic incentives to prompt a prisoner to “stop and think”
before filing a complaint. Id. For example, a prisoner is liable for the civil action filing fee, and if
the prisoner qualifies to proceed in forma pauperis, the prisoner may pay the fee through partial
payments as outlined in 28 U.S.C. § 1915(b). The constitutionality of the fee requirements of the
PLRA has been upheld by the Sixth Circuit. Id. at 1288.
In addition, another provision reinforces the “stop and think” aspect of the PLRA by
preventing a prisoner from proceeding in forma pauperis when the prisoner repeatedly files
meritless lawsuits. Known as the “three-strikes” rule, the provision states:
In no event shall a prisoner bring a civil action or appeal a judgment in a civil action
or proceeding under [the section governing proceedings in forma pauperis] 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.
28 U.S.C. § 1915(g). The statutory restriction “[i]n no event,” found in § 1915(g), is express and
unequivocal. The statute does allow an exception for a prisoner who is “under imminent danger of
https://www.uscourts.gov/services-forms/fees/district-court-miscellaneous-fee-schedule.
However, the miscellaneous administrative fee “does not apply to applications for a writ of habeas
corpus 	or 	to 	persons 	granted 	in 	forma 	pauperis 	status 	under 	28 	U.S.C. 	§ 	1915.”
https://www.uscourts.gov/services-forms/fees/district-court-miscellaneous-fee-schedule.
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serious physical injury.” The Sixth Circuit has upheld the constitutionality of the three-strikes rule
against arguments that it violates equal protection, the right of access to the courts, and due process,
and that it constitutes a bill of attainder and is ex post facto legislation. Wilson v. Yaklich, 148 F.3d
596, 604–06 (6th Cir. 1998).
Plaintiff has been an active litigant in the Michigan federal courts. In three of Plaintiff’s
lawsuits, the Court entered dismissals on the grounds that the cases were frivolous, malicious,
and/or failed to state a claim. See Perry v. State of Michigan, No. 1:25-cv-819 (W.D. Mich. Aug.
25, 2025); Perry v. Briseno, No. 1:25-cv-44 (W.D. Mich. Mar. 10, 2025); Perry v. Briseno,
No. 1:24-cv-542 (W.D. Mich. June 21, 2024). All of these dismissals constitute “strikes” under
the standard articulated by the Sixth Circuit in Crump v. Blue, 121 F.4th 1108 (6th Cir. 2024).
Moreover, Plaintiff’s allegations do not fall within the “imminent danger” exception to the
three-strikes rule. 28 U.S.C. § 1915(g). The Sixth Circuit set forth the following general
requirements for a claim of imminent danger:
In order to allege sufficiently imminent danger, we have held that “the threat or
prison condition must be real and proximate and the danger of serious physical
injury must exist at the time the complaint is filed.” Rittner v. Kinder, 290 F. App’x
796, 797 (6th Cir. 2008) (internal quotation marks omitted). “Thus a prisoner’s
assertion that he or she faced danger in the past is insufficient to invoke the
exception.” Id. at 797–98; see also [Taylor v. First Med. Mgmt., 508 F. App’x 488,
492 (6th Cir. 2012)] (“Allegations of past dangers are insufficient to invoke the
exception.”); Percival v. Gerth, 443 F. App’x 944, 946 (6th Cir. 2011) (“Assertions
of past danger will not satisfy the ‘imminent danger’ exception.”); cf. [Pointer v.
Wilkinson, 502 F.3d 369, 371 n.1 (6th Cir. 2007)] (implying that past danger is
insufficient for the imminent-danger exception).
In addition to a temporal requirement, we have explained that the allegations must
be sufficient to allow a court to draw reasonable inferences that the danger exists.
To that end, “district courts may deny a prisoner leave to proceed pursuant to
§ 1915(g) when the prisoner’s claims of imminent danger are conclusory or
ridiculous, or are clearly baseless (i.e. are fantastic or delusional and rise to the level
of irrational or wholly incredible).” Rittner, 290 F. App’x at 798 (internal quotation
marks and citations omitted); see also Taylor, 508 F. App’x at 492 (“Allegations
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that are conclusory, ridiculous, or clearly baseless are also insufficient for purposes
of the imminent-danger exception.”).
Vandiver v. Prison Health Services, Inc., 727 F.3d 580, 585 (6th Cir. 2013). A prisoner’s claim of
imminent danger is subject to the same notice pleading requirement as that which applies to
prisoner complaints. Id. Consequently, a prisoner must allege facts in the complaint from which
the Court could reasonably conclude that the prisoner was under an existing danger at the time he
filed his complaint, but the prisoner need not affirmatively prove those allegations. Id.
As noted above, Plaintiff is presently incarcerated at the Berrien County Jail in St. Joseph,
Michigan. Plaintiff names the Berrien County Prosecutor’s Office, Berrien County and the City of
Niles as Defendants. Plaintiff alleges that the prosecutor stipulated to dismiss Plaintiff’s appeal of
originating Berrien County criminal Case No. 2023-016049 to the Michigan Court of Appeals and
that initiation of the new criminal case, Case No. 2026-005442, violates his rights under the Fifth
Amendment’s Double Jeopardy Clause in violation of the Fifth Amendment and Mich. Comp.
Laws § 763.50.
Contrary to Plaintiff’s allegation, the stipulation dismissed Plaintiff’s appeal, not the
underlying criminal action. See https://www.courts.michigan.gov/c/courts/coa/case/380484. In
any event, Plaintiff alleges no fact supporting an inference that he is presently in imminent danger
of serious physical harm. His allegations relatedly solely to the propriety of the current criminal
action. His allegations do not implicate the “imminent danger” exception.
Accordingly, for the foregoing reasons, Plaintiff is barred from proceeding in forma
pauperis under § 1915(g). Plaintiff also has not paid the $405.00 civil action filing fees applicable
to those not permitted to proceed in forma pauperis. The Court will therefore dismiss this action
without prejudice. See Dupree v. Palmer, 284 F.3d 1234, 1236 (11th Cir. 2002) (“[T]he proper
procedure is for the district court to dismiss the complaint without prejudice when it denies the
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prisoner leave to proceed in forma pauperis pursuant to the three strikes provision of § 1915(g).”).
Plaintiff is free to refile his complaint as a new action in this Court if he submits the filing fees at
the time that he initiates the new action.
Conclusion
For the foregoing reasons, the Court will deny Plaintiff leave to proceed in forma pauperis.
The Court will dismiss this action without prejudice to Plaintiff’s right to refile his complaint as a
new action in this Court with the full civil action filing fees.2
For the same reasons that the Court dismisses the action, the Court discerns no good-faith
basis for an appeal. See 28 U.S.C. § 1915(a)(3); McGore v. Wrigglesworth, 114 F.3d 601, 611 (6th
Cir. 1997). Further, should Plaintiff appeal this decision, he must pay the $605.00 appellate filing
fee in a lump sum, because he is prohibited from proceeding in forma pauperis on appeal by 28
U.S.C. § 1915(g).
An order and judgment consistent with this opinion will be entered.
Dated: 	June 4, 2026 	/s/ Robert J. Jonker
Robert J. Jonker
United States District Judge
2 Because Plaintiff has the opportunity to refile his complaint as a new action in this Court by
paying the full civil action filing fees at the time of filing the new action, the Court will not assess
the district court filing fees in the present action.
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