REPORT AND RECOMMENDATION

Proceedings Under 42 U.S.C. § 1983 Before the U.S. Magistrate Judge

CHARLES H. WEIGLE, Magistrate Judge.

Defendant Jessica Battle, identified as "PA Battle" in the complaint, moves for dismissal of this Section 1983 action pursuant to the Prison Litigation Reform Act's ("PLRA") "three strike" rule. (Doc. 25); see 28 U.S.C. § 1915(g). As it is not clear that Plaintiff Robert Meriwether has accrued three strikes, it is RECOMMENDED that the motion be DENIED.1

The three-strikes provision of the PLRA bars a prisoner from proceeding in forma pauperis in a civil action if the prisoner is not under imminent danger of serious physical injury and three or more of the prisoner's prior actions were dismissed either as frivolous, malicious, or for failure to state a claim. 28 U.S.C. § 1915(g). When a district court denies a prisoner in forma pauperis status under the three-strikes provision, "the proper procedure is for the district court to dismiss the complaint without prejudice." Dupree v. Palmer, 284 F.3d 1234, 1236 (11th Cir. 2002) (per curiam).

Defendant contends that the following three cases were dismissed as "strikes" under the three-strikes provision: Meriwether v. Rasnick, No. 1:00-CV-2952 (N.D. Ga. Dec. 8, 2000); Meriwether v. Baldwin, No. 1:00-CV-2953 (N.D. Ga. Dec. 8, 2000); and Meriwether v. Hayes, No. 1:00-CV-2954 (N.D. Ga. Dec. 8, 2000). As evidence of these strikes, Defendant has provided an order from an unrelated case, Meriwether v. Barnes, 1:14-CV-3985 (N.D. Ga. Jan. 12, 2015), adopting 1:14-CV-3985-CC-GCB (N.D. Ga. Dec. 18, 2014), in which the Northern District of Georgia concluded that the dockets for the above-cited cases "indicate[d] that all three cases were dismissed pursuant to 28 U.S.C. § 1915A and that all count as `strikes' under § 1915(g)." Defendant has also provided the PACER docket sheets for each of the above-cited cases, which do, in fact, indicate that those cases were dismissed pursuant to Section 1915A. (Docs. 25-5, 25-6, 25-7).

Defendant's motion adds little to the record. The Court discussed each of the above-cited cases, including the 2014 Recommendation from the Northern District and the docket text of each case, in the order granting Plaintiff in forma pauperis status. See (Doc. 5, pp. 1-4). The Court concluded that it "cannot determine that dismissed `pursuant to § 1915A' [as stated on the PACER docket sheets] offers sufficient clarity to indicate that these prior dismissals were for one of the grounds enumerated in 1915(g)." (Doc. 5, p. 3). The order from the Northern District does not alter this conclusion. Although the Northern District made the additional finding that all of the above-cited cases "count as `strikes' under § 1915(g)," this finding appears to be based on court documents that are not currently part of the record in this case.

In determining whether a prisoner has accrued three strikes, "the [PLRA] instructs [courts] to consult the prior order that dismissed the action or appeal and to identify the reasons that the court gave for dismissing it." Daker v. Comm'r, Georgia Dep't of Corr., 820 F.3d 1278, 1284 (11th Cir. 2016) (emphases in original). Courts are not permitted to conclude that a case counts as a strike against a prisoner "based on [a] conclusion that the dismissing court could have dismissed it as frivolous[, malicious, or for failure to state a claim]." Id. (emphasis in original). As the Court stated in its in forma pauperis order, "for a variety of reasons, a complaint that is neither frivolous, malicious, nor fails to state a claim could nonetheless be dismissed pursuant to Section 1915A." (Doc. 5, p. 3) (quoting Thompson v. Drug Enf't Admin., 492 F.3d 428, 439 (D.C. Cir. 2007)). Claims barred by jurisdictional doctrines, such as Younger abstention and Rooker-Feldman, for example, can be dismissed pursuant to Section 1915A, yet do not count as strikes for the purpose of Section 1915(g). See Daker, 820 F.3d at 1284 (concluding that a dismissal on jurisdictional grounds, "without more, cannot serve as a strike"); see also (Doc. 5, p. 3 n.1) (discussing dismissals for lack of jurisdiction). As the prior orders dismissing the three above-cited cases are not in the record for the Court's review, it cannot be said that those cases were dismissed either as frivolous, malicious, or for failure to state a claim. It is, therefore, RECOMMENDED that Defendant's motion to dismiss be DENIED.

Pursuant to 28 U.S.C. § 636(b)(1), the parties may serve and file written objections to this Recommendation, or seek an extension of time to file objections, WITHIN FOURTEEN (14) DAYS after being served with a copy thereof. The District Judge will make a de novo determination of those portions of the Recommendation to which objection is made. All other portions of the Recommendation may be reviewed for clear error.

The parties are further notified that, pursuant to Eleventh Circuit Rule 3-1, "[a] party failing to object to a magistrate judge's findings or recommendations contained in a report and recommendation in accordance with the provisions of 28 U.S.C. § 636(b)(1) waives the right to challenge on appeal the district court's order based on unobjected-to factual and legal conclusions if the party was informed of the time period for objecting and the consequences on appeal for failing to object. In the absence of a proper objection, however, the court may review on appeal for plain error if necessary in the interests of justice."

SO RECOMMENDED.