Filed: Jul. 21, 2012
Latest Update: Jul. 21, 2012
Summary: MEMORANDUM AND ORDER RICHARD J. LEON, District Judge. Defendant moves for reconsideration of the Order of December 21, 2011, granting plaintiffs motion to proceed in forma pauperis ("IFP"), which defendant has opposed. See Order, ECF No.6; Def.'s Mot. for Reconsideration, ECF No. 12. Defendant contends that plaintiff should be barred from proceeding IFP under the three-strike provision of the Prison Litigation Reform Act, which states as follows: In no event shall a prisoner bring a civi
Summary: MEMORANDUM AND ORDER RICHARD J. LEON, District Judge. Defendant moves for reconsideration of the Order of December 21, 2011, granting plaintiffs motion to proceed in forma pauperis ("IFP"), which defendant has opposed. See Order, ECF No.6; Def.'s Mot. for Reconsideration, ECF No. 12. Defendant contends that plaintiff should be barred from proceeding IFP under the three-strike provision of the Prison Litigation Reform Act, which states as follows: In no event shall a prisoner bring a civil..
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MEMORANDUM AND ORDER
RICHARD J. LEON, District Judge.
Defendant moves for reconsideration of the Order of December 21, 2011, granting plaintiffs motion to proceed in forma pauperis ("IFP"), which defendant has opposed. See Order, ECF No.6; Def.'s Mot. for Reconsideration, ECF No. 12. Defendant contends that plaintiff should be barred from proceeding IFP under the three-strike provision of the Prison Litigation Reform Act, which states as follows:
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 ... 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). Such dismissals are authorized by 28 U.S.C. § 1915(e)(2) and§ 1915A, the latter of which requires the screening of prisoners' civil complaints and, if appropriate, the immediate dismissal of such complaints.
Defendant has the burden of "produc[ing] evidence capable of showing that the district court dismissed the case on section 1915(g) grounds." Thompson v. DEA, 492 F.3d 428, 436 (D.C. Cir. 2007). "Unexplained dismissals," id. at 435, and those based on grounds not listed in section 1915(g), do not suffice in this circuit. See id. at 439 (declining "to treat all section 1915A dismissals as presumptive strikes."). Furthermore, "[i]f at least one claim within an action or appeal falls outside section 1915(g), the action or appeal does not count as a strike," id at 440, and the affirmance of a qualifying dismissal by the court of appeals does not count as a strike absent the court's stating "that the appeal was frivolous, malicious, or failed to state a claim." /d. at 436.
Under the foregoing criteria, defendant has identified just one qualifying strike. Def.'s Mot. for Reconsideration, Ex. A (Fisher v. Casterline, No. CV03-2231-A (W.D. La. Apr. 7, 2005) (dismissing case as frivolous). Defendant has requested in the alternative that the Court exercise its discretion "to withdraw [plaintiff's] IFP privileges," Def.'s Mot. for Reconsideration at 6, but he has not in any way shown that plaintiff has abused the privilege to proceed IFP. See Thompson, 492 F.3d at 439 (quoting Butler v. Dep't of Justice, 492 F.3d 440, 446-47 (D.C. Cir. 2007)) (requiring examination of "the number, content, frequency, and disposition of [the prisoner's] previous filings to determine if there is a pattern of abusing the IFP privilege in his litigation history") (brackets in original). Accordingly, it is
ORDERED that defendant's motion to reconsider the order granting plaintiff's in forma pauperis motion [Dkt. # 12] is DENIED; and it is further
ORDERED that defendant's motion for an enlargement of time to answer or otherwise respond to the complaint [Dkt. # 13] is GRANTED. Defendant shall respond to the complaint by August 20, 2012.
SO ORDERED.
