Summary
recommending that motion to vacate order granting in forma pauperis status be granted and that in forma pauperis status be revoked where plaintiff prisoner had accumulated three strikes
Summary of this case from Holt v. NorwoodOpinion
Civil Action 2:14-cv-1057
12-16-2014
KERMIT GABEL, Plaintiff, v. STUART HUDSON, et al., Defendants.
Judge Smith
REPORT AND RECOMMENDATION
Plaintiff, a state inmate proceeding without the assistance of counsel, brings this civil rights action under 42 U.S.C. § 1983, claiming that he has been denied medical or dental care in violation of his rights under the Eighth and Fourteenth Amendments to the United States Constitution. This matter is before the Court on Defendants' Motion to Vacate Order Granting Plaintiff's Motion for Leave to Proceed In Formal Pauperis (Doc. 5), ECF 10 ("Motion to Vacate"). For the reasons that follow, it is RECOMMENDED that the Motion to Vacate be granted and that plaintiff be required to pay the remaining $50.00 of the full $400.00 filing fee within fourteen (14) days.
Plaintiff instituted this action after the Court granted him leave to proceed in forma pauperis on August 18, 2014. Order, ECF 5. Defendants now move to vacate that Order, arguing that plaintiff has filed numerous lawsuits in federal court over multiple years and contending that "at least three" of those actions or appeals "were dismissed as frivolous or for failure to state a claim upon which relief may be granted." Motion to Vacate, pp. 3-4. Defendants therefore argue that the "three strikes" provision of the Prison Litigation Reform Act ("PLRA"), 28 U.S.C. § 1915(g), requires that leave to proceed in forma pauperis be revoked and that plaintiff be required to pay the full $400.00 filing fee. Id. at 3-5. Plaintiff opposes the Motion to Vacate, see ECF 13, and this matter is ripe for resolution with the filing of defendants' reply memorandum, ECF 15.
The Court notes that, in the application for leave to proceed in forma pauperis, plaintiff identified one case, Gabel v. Bunting, 3:11-cv-2404, in response to the question: "Have you on three or more prior occasions, while incarcerated or detained in any prison, jail or other facility, brought an action in a court of the United States that was dismissed on the grounds that it was frivolous, malicious, or failed to state a claim upon which relief may be granted?" Application and Affidavit by Incarcerated Person to Proceed Without Prepayment of Fees, ECF 4, PAGEID#:18.
"The ability to bring lawsuits without payment of the statutory filing fee is a privilege, not a right." Jackson v. Bell, No. 1:10-cv-1255, 2010 WL 5343747, at *2 (W.D. Mich. Dec. 21, 2010). The provision of the PLRA that governs in forma pauperis status, i.e., the "three strikes" provision, states:
In no event shall a prisoner bring a civil action or appeal a judgment in a civil action or proceeding under this section 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). See also Wilson v. Yaklich, 148 F.3d 596, 602, 604 (6th Cir. 1998) (noting that the PLRA was signed into law in 1996 and stating that Congress enacted the "three strikes" provision "[i]n an effort to lessen the crush of such [frivolous prisoner] filings on the courts"). The "three strikes" provision applies even to cases that were dismissed prior to the effective date of the PLRA. See, e.g., Wilson, 148 F.3d at 604 ("[W]e thus hold that dismissals of previous actions entered prior to the effective date of the PLRA may be counted toward the 'three strikes' referred to in 28 U.S.C. § 1915(g)"). In addition, "[t]he plain language [of Section 1915(g)] seemingly limits the application of a strike to dismissals by only speaking of dismissals." Taylor v. First Med. Mgmt., No. 10-6411, 508 F. App'x 488, at *494 (6th Cir. Dec. 14, 2012). Therefore, the affirmance on appeal of a trial court's dismissal of a case does not alone count as a "strike;" instead, the dismissal of an appeal as frivolous, malicious or for failure to state a claim upon which relief may be granted properly counts as a "strike." Id. ("The other circuits presented with the question of whether an affirmance can count as a strike have held that a court should not impose a § 1915(g) strike for an appeal when the original appellate court declined to implicate § 1915(g) reasons."). Finally, if the privilege of proceeding in forma pauperis is abused, a court may revoke this status. See, e.g., In re McDonald, 489 U.S. 180, 184 (1989); Reneer v. Sewell, 975 F.2d 258, 260-61 (6th Cir. 1992).
In the case presently before the Court, defendants argue that plaintiff has at least three "strikes" because two cases filed by him in other district courts were dismissed for failure to state a claim upon which relief can be granted and one of those decisions was affirmed in an appeal that was itself characterized as frivolous. Motion to Vacate, pp. 3-5 (citing Affidavit of Linda Hill, ¶¶ 6(A), 6(B), 6(E), attached to Motion to Vacate ("Hill Affidavit"); Attachments 2, 3 and 6, to the Hill Affidavit). More specifically, defendants first cite to Gabel v. Estelle, No. H-81-3125, 677 F. Supp. 514 (S.D. Tex. Mar. 23, 1987) (Hughes, J.), in which that court dismissed the action with prejudice for failure to state a claim upon which relief can be granted. See Hill Affidavit, ¶ 6(A); Attachment 2, PAGEID#:44. On appeal, the United States Court of Appeals for the Fifth Circuit in Gabel v. Lynbaugh, No. 872353, 835 F.2d 124 (5th Cir. Jan. 8, 1988) "agree[d] with the trial court's conclusion [in Gabel v. Estelle] that the action is frivolous and subject to dismissal pursuant to 28 U.S.C. § 1915(d)." Hill Affidavit, ¶ 6(B); Attachment 3, PAGID#:45. The Fifth Circuit further concluded that "the briefing of this meritless and frivolous appeal renders the pro se appellants subject to [] sanctions" and that "[w]e do not sit as a means by which the system can be punished - or to be punished ourselves - by the pursuit of frivolous or malicious appeals by disgruntled state prisoners." Attachment 3, PAGEID#:45. See also id. at PAGEID#:46 (requiring each appellant to pay monetary sanctions to appellees in the form of $10.00 for court costs incurred in the action). Finally, defendants contend that Gabel v. Bunting, No. 3:11-cv-2404, Order, ECF 5 (N.D. Ohio Jan. 5, 2012) (Carr, J.), counts as a third strike because the District Court in that case dismissed the action pursuant to 28 U.S.C. § 1915(e) and certified pursuant to 28 U.S.C. § 1915(a)(3) that an appeal could not be taken in good faith. Hill Affidavit, ¶ 6(E); Attachment 6, PAGEID#:53.
Plaintiff concedes that Gabel v. Bunting, No. 3:11-cv-2404, Order, ECF 5 (N.D. Ohio Jan. 5, 2012) (Carr, J.), counts as a strike. ECF 13, pp. 2-3. However, plaintiff contends, inter alia, that the other decisions, namely, Gabel v. Estelle, No. H-81-3125, 677 F. Supp. 514 (S.D. Tex. Mar. 23, 1987) (Hughes, J.), aff'd Gabel v. Lynbaugh, No. 872353, 835 F.2d 124 (5th Cir. Jan. 8, 1988), do not count as strikes because those cases were decided prior to the enactment of the PLRA. ECF 13, p. 2. Plaintiff's argument is not well-taken. As discussed supra, it is well-established that the "three strikes" provision applies to cases that were dismissed prior to the effective date of the PLRA. Wilson, 148 F.3d at 604. As set forth above, Gabel v. Estelle, No. H-81-3125, 677 F. Supp. 514 (S.D. Tex. Mar. 23, 1987) (Hughes, J.), aff'd Gabel v. Lynbaugh, No. 872353, 835 F.2d 124 (5th Cir. Jan. 8, 1988), count as plaintiff's second and third strikes under 28 U.S.C. § 1915(g) because the actions were dismissed as frivolous.
Plaintiff also contends that defendants waived their right to assert the "three strikes" argument because they did not raise it in Gabel v. Hudson, No. 2:12-cv-597 (S.D. Ohio). ECF 13, PAGEID#:100, PAGID#:102 (contending that the present action is "essentially a continuation of case #2:12-CV-597"). This Court again disagrees. The "three strikes" provision is not an affirmative defense that must be raised by a defendant; a court may sua sponte dismiss an action pursuant to 28 U.S.C. § 1915(g) once the court becomes aware of the facts. See, e.g., Witzke v. Hiller, 966 F. Supp. 538, 539-40 (E.D. Mich. 1997)( sua sponte dismissing action under 28 U.S.C. § 1915(g)); Bowker v. United States, 4:04 CV 2522, 2006 WL 2990519, at *3 (N.D. Ohio Oct. 18, 2006) ("This 'three strikes' provision of the [PLRA] is not an affirmative defense. It may be raised by a federal court sua sponte.") (internal citation omitted). See also Harris v. City of New York, 607 F.3d 18, 23 (2d Cir. 2010) ("[T]he three strikes rule is not an affirmative defense that must be raised in the pleadings. Other courts have reached the conclusion that district courts may apply the three strikes rule sua sponte.").
This Court finds that plaintiff has brought, on three or more prior occasions, while incarcerated, an action that was dismissed on the ground that it failed to state a claim upon which relief may be granted or was frivolous. Therefore, at the time that plaintiff sought leave to proceed in forma pauperis in this action, he had three "strikes", as defined by the PLRA, against him. Because the Complaint, ECF 1, alleges nothing that would fall within the "imminent danger of serious physical injury" exception to the "three strikes" provision, 28 U.S.C. § 1915(g), the Court concludes that the PLRA prohibits the grant of in forma pauperis status to plaintiff in this action.
Having so concluded, the Court does not address the other actions filed by plaintiff, including habeas cases, discussed by the parties.
WHEREUPON, it is RECOMMENDED that Defendants' Motion to Vacate Order Granting Plaintiff's Motion for Leave to Proceed In Formal Pauperis (Doc. 5), ECF 10, be GRANTED and that plaintiff be ordered to pay, within fourteen (14) days, the full $400.00 filing fee.
As noted supra, the docket reflects partial filing fee payments in the amount of $4.00 on September 22, 2014, and in the amount of $346.00 on November 18, 2014, leaving $50.00 unpaid. Cf. Bussie v. House Oversight Comm., No. 1:14cv32, 2014 U.S. Dist. LEXIS 35984 (S.D. Ohio Mar. 19, 2014).
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If any party seeks review by the District Judge of this Report and Recommendation, that party may, within fourteen (14) days, file and serve on all parties objections to the Report and Recommendation, specifically designating this Report and Recommendation, and the part thereof in question, as well as the basis for objection thereto. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b). Response to objections must be filed within fourteen (14) days after being served with a copy thereof. Fed. R. Civ. P. 72(b).
The parties are specifically advised that failure to object to the Report and Recommendation will result in a waiver of the right to de novo review by the District Judge and of the right to appeal the decision of the District Court adopting the Report and Recommendation. See Thomas v. Arn, 474 U.S. 140 (1985); Smith v. Detroit Fed'n of Teachers, Local 231 etc., 829 F.2d 1370 (6th Cir. 1987); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).
December 16, 2014
s/Norah McCann King
Norah McCann King
United States Magistrate Judge