Washington v. Durst, LPM

• Court: District Court, M.D. Pennsylvania
• Decided: March 10, 2023
• Docket: 4:22-cv-01243
• Status: Unknown

Opinion

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

JEROME JUNIOR WASHINGTON, No. 4:22-CV-01243

Plaintiff, (Chief Judge Brann)

v.

DAVID DURST, LPM, et al.,

Defendants.

ORDER MARCH 10, 2023 AND NOW, upon consideration of Defendants’ motion1 for reconsideration of this Court’s December 9, 2022 Order2 granting Plaintiff Jerome Junior Washington in forma pauperis status in this case, in which Defendants assert that Washington has accrued at least three “strikes” under 28 U.S.C. § 1915(g) prior to filing the instant lawsuit,3 i.e., that Washington has previously filed at least three civil actions in federal court while incarcerated which have been dismissed on the grounds that they are “frivolous, malicious, or fail[] to state a claim upon which relief may be granted,”4 and the Court finding that Defendants’ three-strikes

1 Doc. 14. 2 Doc. 9. 3 See Doc. 15 at 3-4; Byrd v. Shannon, 715 F.3d 117, 122 (3d Cir. 2013). contention is not supported by the record,5 IT IS HEREBY ORDERED that: 1. Defendants’ motion (Doc. 14) for reconsideration of this Court’s December 9, 2022 Order granting Washington in forma pauperis status is DENIED without prejudice.

2. Should Defendants locate other dismissals that would qualify as strikes under 28 U.S.C. § 1915(g), they may reassert their motion regarding Plaintiff’s in forma pauperis status.

3. Washington shall pay the initial partial filing fee that is due in this case within 21 days of the date of this order. That fee is $31.36.6 Failure to pay this statutorily required fee or to establish why said fee cannot be paid may result in dismissal of this case for failure to prosecute.

BY THE COURT:

s/ Matthew W. Brann Matthew W. Brann Chief United States District Judge

5 Of the cases that Defendants cite, only one—Washington v. Weiner, No. 2:16-cv-2487, Docs. 20, 31 (E.D. Pa. Mar. 3, 2017)—qualifies as a strike under Section 1915(g). The Western District of Pennsylvania cases do not qualify as strikes, see Washington v. Gilmore, 825 F. App’x 58, 59-60 (3d Cir. 2020) (nonprecedential), and this Court’s dismissal of Washington v. Salamon, No. 4:21-cv-01746, Docs. 50, 51 (M.D. Pa. Sept. 7, 2022) does not qualify because leave to amend was granted, see id., Doc. 57; Lomax v. Ortiz-Marquez, 590 U.S. __, 140 S. Ct. 1721, 1724 n.4 (2020) (explaining that dismissal with leave to amend falls outside of Section 1915(g)). 6 Washington had $940.93 worth of deposits into his inmate account for the six-month period ending on August 19, 2022. See Doc. 8. The average monthly deposit, therefore, was $156.82, and twenty percent of that average monthly deposit is $31.36—the initial partial filing fee. See