Opinion
Case No. 3:19 CV 1329
08-23-2019
Antoine Maurice MOORE, Plaintiff, v. Jill DEWILTZ, et al., Defendants.
Antoine Maurice Moore, Stryker, OH, pro se.
Antoine Maurice Moore, Stryker, OH, pro se.
ORDER DENYING MOTION
JACK ZOUHARY, U. S. DISTRICT JUDGE
Plaintiff pro se Antoine Moore is no stranger to the Northern District of Ohio. He filed complaints with this Court in December 2018 (3:18 CV 2978), January 2019 (3:19 CV 168), April 2019 (3:19 CV 956), and June 2019 (3:19 CV 1329). Pending before District Judge Jeffrey Helmick is a second complaint filed by Moore in April 2019 (3:19 CV 722). Moore filed a habeas petition in January 2018 (3:18 CV 10), two in September 2018 (3:18 CV 2067 and 3:18 CV 2156), and two others in December 2018 (3:18 CV 2918 and 3:18 CV 2977). For those keeping score, that's ten actions initiated by Moore -- none of them successful -- in less than two years. A criminal charge is also pending against Moore, with trial scheduled for October 2019 before Judge Helmick (3:18 CR 532-3, Non-Doc. Entry 6/4/2019). At issue here is the lawsuit Moore filed in June.
Moore seeks to proceed without prepayment of fees (Doc. 2). He cannot. Under the Three Strikes Rule, 28 U.S.C. § 1915(g),
[i]n no event shall a prisoner bring a civil action ... [without prepayment of fees] if the prisoner has, on 3 or more prior occasions, while incarcerated or detained ..., brought an action ... in a [federal] court ... that was dismissed on the grounds that it ... fails to state a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious physical injury.
Moore has at least three strikes. His January 2018 habeas petition was denied because he failed to "assert[ ] grounds upon which [Judge Helmick could] grant relief" (3:18 CV 10, Doc. 15 at 3); his December 2018 and January 2019 complaints were also rejected for failure to state a claim (3:18 CV 2978, Doc. 5; 3:19 CV 168, Doc. 13 at 1). He was incarcerated or detained when he initiated each of those three actions and the action at issue here. For these reasons, and because the Complaint does not indicate he is in danger of injury, Moore cannot proceed without prepayment of fees.
To be sure, at least three district-court decisions in this Circuit have indicated that habeas dismissals cannot be strikes: Sedlak v. Holder , 2015 WL 10080904, at *3 (E.D. Mich. 2015) ; Daniel v. Lafler , 2009 WL 2386064, at *2 n.4 (E.D. Mich. 2009) ; and Cohen v. Corr. Corp. of Am. , 2009 WL 3259124, at *3 (N.D. Ohio 2009). So have the Courts of Appeals of several other Circuits. See, e.g. , Jones v. Smith , 720 F.3d 142, 146 (2d Cir. 2013). This Court respectfully disagrees. The most relevant binding precedent is Kincade v. Sparkman , 117 F.3d 949 (6th Cir. 1997). Kincade held that, for purposes of the Section 1915(g) Three Strikes Rule, a habeas action is not a "civil action." Id. at 950. Because three strikes disqualify a prisoner from filing "a civil action" without prepayment of fees, three strikes do not bar the filing of a habeas petition without prepayment. Id. at 951–52. But Kincade did not hold that dismissal of a habeas petition cannot create a strike. Section 1915(g)'s text precludes such a holding: it assigns a strike when "an action" -- whether civil or not -- is dismissed for certain reasons. The exclusion by Congress of the modifier "civil" when defining strikes, coupled with the modifier's inclusion in another operative part of the same section, means that dismissed habeas actions may constitute strikes. Cf. Samarripa v. Ormond , 917 F.3d 515, 521 (6th Cir. 2019) ("[ Section 1915(b)(1) ] applies when a prisoner ‘files an appeal in forma pauperis.’ There appears to be no modifier limiting this language to a subset of pauper appeals. It seems to cover each and every one.") (citation omitted). To the extent other courts relied on legislative history in support of a contrary conclusion, see, e.g. , Jones , 720 F.3d at 147, such reliance was inappropriate. At least in this Circuit, courts "do not resort to legislative history to cloud a statutory text that is clear." United States v. Banyan , 933 F.3d 548, 553, 2019 WL 3540794, at *2 (6th Cir. 2019) (quoting Ratzlaf v. United States , 510 U.S. 135, 147–48, 114 S.Ct. 655, 126 L.Ed.2d 615 (1994) ).
The Motion to Proceed Without Prepayment of Fees (Doc. 2) is denied. If Moore does not pay the full filing fee within thirty days, the Complaint will be dismissed.
IT IS SO ORDERED.