Opinion
4:22-CV-01243
03-10-2023
JEROME JUNIOR WASHINGTON, Plaintiff, v. DAVID DURST, LPM, et al., Defendants.
ORDER
Matthew W. Brann, Chief United States District Judge
AND NOW, upon consideration of Defendants' motion for reconsideration of this Court's December 9, 2022 Order granting Plaintiff Jerome Junior Washington in forma pauperis status in this case, in which Defendants assert that Washington has accrued at least three “strikes” under 28 U.S.C. § 1915(g) prior to filing the instant lawsuit, i.e., that Washington has previously filed at least three civil actions in federal court while incarcerated which have been dismissed on the grounds that they are “frivolous, malicious, or fail[] to state a claim upon which relief may be granted,” and the Court finding that Defendants' three-strikes contention is not supported by the record, IT IS HEREBY ORDERED that:
Doc. 14.
Doc. 9.
See Doc. 15 at 3-4; Byrd v. Shannon, 715 F.3d 117, 122 (3d Cir. 2013).
28 U.S.C. § 1915(g); see Byrd, 715 F.3d at 126.
Of the cases that Defendants cite, only oneWashington v. Weiner, No. 2:16-cv-2487, Docs. 20, 31 (E.D. Pa. Mar. 3, 2017)-qualifies as a strike under Section 1915(g). The Western District of Pennsylvania cases do not qualify as strikes, see Washington v. Gilmore, 825 Fed.Appx. 58, 59-60 (3d Cir. 2020) (nonprecedential), and this Court's dismissal of Washington v. Salamon, No. 4:21-cv-01746, Docs. 50, 51 (M.D. Pa. Sept. 7, 2022) does not qualify because leave to amend was granted, see id., Doc. 57; Lomax v. Ortiz-Marquez, 590 U.S. __, 140 S.Ct. 1721, 1724 n.4 (2020) (explaining that dismissal with leave to amend falls outside of Section 1915(g)).
1. Defendants' motion (Doc. 14) for reconsideration of this Court's December 9, 2022 Order granting Washington in forma pauperis status is DENIED without prejudice. 2. Should Defendants locate other dismissals that would qualify as strikes under 28 U.S.C. § 1915(g), they may reassert their motion regarding Plaintiff's in forma pauperis status. 3. Washington shall pay the initial partial filing fee that is due in this case within 21 days of the date of this order. That fee is $31.36. Failure to pay this statutorily required fee or to establish why said fee cannot be paid may result in dismissal of this case for failure to prosecute.