Opinion
CIVIL ACTION NO.: 5:09-CV-381 (CAR).
January 20, 2010
ORDER
Plaintiff MARSHALL H. FOSKEY, has filed a Motion for Reconsideration (R. at 15). For the reasons discussed below, this motion is DENIED.
Plaintiff, an inmate at Telfair State Prison, filed a pro se civil rights complaint under 42 U.S.C. § 1983. Plaintiff also sought leave to proceed without prepayment of the $350.00 filing fee or security therefor pursuant to 28 U.S.C. § 1915(a). In an Order dated November 24, 2009, the Court denied plaintiff's motion to proceed in forma pauperis and dismissed his action withou prejudice because he had at least three complaints or appeals that were dismissed as frivolous pursuant to 28 U.S.C. § 1915: Foskey v. State Board of Pardons and Paroles, 1:94-CV-3435 (RCF) (N. D. Ga. Feb. 28, 1995); Foskey v. Wingfield , 5:02-CV-191 (CAR) (M. D. Ga. Oct. 15, 2002) (an appeal was also dismissed as frivolous by the United State Court of Appeals for the Eleventh Circuit, No. 02-16320J, on April 17, 2003); Foskey v. Wetherington , 1:02-CV-3721 (CC) (N. D. Ga. Jan 8, 2003).
In his Motion for Reconsideration, plaintiff maintains that Foskey v. State Board of Pardons and Paroles, 1:94-CV-3435 (RCF) (N. D. Ga. Feb. 28, 1995) "was dismissed by the Northern District Court because he missed a filing deadline, not because it was frivolous, malicious, or failed to state a claim." This is not the case. The record shows that plaintiff filed his original complaint on December 19, 2004 and the Court granted his motion to proceed in forma pauperis on December 20, 1994. Thereafter, in an Order dated February 28, 1995, the Court performed a review pursuant to 28 U.S.C. § 1915(d) , which authorized a federal court to dismiss a complaint, prior to service of process on the defendants, if the action was malicious or frivolous. In this February 28, 1995 Order, the Court expressly found as follows:
Under 28 U.S.C. § 1915(d), as then in effect, a court could dismiss a case if the allegation of poverty was untrue or if the action was frivolous or malicious. Former 28 U.S.C. § 1915(d) is now codified at 28 U.S.C. §§ 1915(e)(2) and 1915A, which additionally allow a court to dismiss an action that fails to state a claim upon which relief can be granted.
In light of the decision in Sultenfuss [v. Snow, 35 F.3d 1494 (11th Cir. 1994)], plaintiff's due process challenge to the Board's departure from established parole guidelines in determining his tentative parole date fails to rise to the level of a constitutional violation, and this action is DISMISSED, pursuant to 28 U.S.C. § 1915(d).Foskey v. State Board of Pardons and Paroles, 1:94-CV-3435 (RCF) (N. D. Ga. Feb. 28, 1995).
In his Motion for Reconsideration, plaintiff also maintains that Foskey v. Wetherington , 1:02-CV-3721 (CC) (N. D. Ga. Jan 8, 2003) should not count as a strike because "it was dismissed because the Court held that Plaintiff had missed a filing deadline for bringing such a complaint, not because it was frivolous, malicious, or failed to state a claim." Again, this is incorrect. In an Order dated January 8, 2003, the Court reviewed plaintiff's initial complaint and expressly held that "the instant action is hereby DISMISSED pursuant to the provisions of 28 U.S.C. § 1915A."
28 U.S.C. § 1915A requires a federal court to review and dismiss any prisoner complaint seeking redress against a governmental entity or officer if the court determines that the action (1) is frivolous, malicious, or fails to state a claim on which relief may be granted or (2) seeks monetary relief against a defendant who is immune from such relief.
Therefore, plaintiff's Motion for Reconsideration is DENIED.