Fisher v. Fulwood, Jr.

• Court: District Court, District of Columbia
• Decided: July 23, 2012
• Docket: Civil Action No. 2011-2107
• Status: Published

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

RICHARD FISHER, ) ) Plaintiff, ) ) v. ) Civil Action No. 11-2107 (RJL) ) ISAAC FULWOOD, JR., ) ) Defendant. )

Sf- MEMoRANDuM AND ORDER July £,/ , 2012

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 ofJustice, 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.