Nathan Jacobs v. Shelly Carr


UNPUBLISHED PER CURIAM OPINION filed. Motion disposition in opinion--denying Motion for other relief [999903326-2]. Originating case number: 2:16-cv-00001-JPB-MJA. Copies to all parties and the district court/agency [1000018480]. Mailed to: Nathan E. Jacobs. [16-6372]

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Appeal: 16-6372 Doc: 12 Filed: 02/07/2017 Pg: 1 of 3 UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 16-6372 NATHAN E. JACOBS, Plaintiff - Appellant, v. MRS. SHELLY CARR, Case Manager, Defendant - Appellee. Appeal from the United States District Court for the Northern District of West Virginia, at Elkins. John Preston Bailey, District Judge. (2:16-cv-00001-JPB-MJA) Submitted: January 12, 2017 Decided: February 7, 2017 Before GREGORY, Chief Judge, and MOTZ and AGEE, Circuit Judges. Vacated and remanded by unpublished per curiam opinion. Nathan E. Jacobs, Appellant Pro Se. Unpublished opinions are not binding precedent in this circuit. Appeal: 16-6372 Doc: 12 Filed: 02/07/2017 Pg: 2 of 3 PER CURIAM: Nathan E. Jacobs appeals the dismissing his Bivens 1 complaint. district court’s order Because the district court incorrectly determined that Jacobs has three qualifying strikes under the Prison Litigation Reform Act (PLRA), 28 U.S.C. § 1915(g) (2012), we vacate the order of dismissal and remand. In concluding that Jacobs had three strikes under the PLRA at the time he filed the subject complaint, the district court relied on Jacobs v. U.S.A. Supreme Court Clerk, Civ. Action No. 10-1332, 2010 WL 3123169 (D.D.C. Aug. 9, 2010) (unpublished); Jacobs v. Supreme Court of the United States, No. 10-5271, 2011 WL 2199975 (D.C. Cir. May 17, 2011) (unpublished) (“Supreme Court”); and Jacobs v. Holder, No. 4:10-cv-1544, 2010 WL 4449357 (N.D. Ohio Nov. 1, 2010) (unpublished). district court erred in finding that We conclude that the Supreme Court properly qualifies as a strike. In Supreme District “[b]ecause of Court, Columbia the the Circuit appropriate action is warranted.” U.S. Court denied disposition of Appeals relief, is so 2011 WL 2199975, at *1. for stating clear, the that summary However, the court did not reference § 1915 or explicitly state that Jacobs’ 1 Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971). 2 Appeal: 16-6372 Doc: 12 Filed: 02/07/2017 Pg: 3 of 3 appeal was frivolous, malicious, or failed to state a claim for relief. 607 In light of our decision in Blakely v. Wards, 738 F.3d (4th Cir. importance of 2013) the (en express banc), in language which used we by emphasized the the adjudicating court, id. at 613-15, 617, we conclude that the language in Supreme Court does not evidence a PLRA strike. 2 Accordingly, we vacate the order of dismissal and remand for further proceedings. dispense with contentions are oral We deny Jacobs’ pending motion. argument adequately because presented in the the facts We and legal materials before this court and argument would not aid the decisional process. VACATED AND REMANDED 2 A PACER search did not reveal any other action that could properly qualify as a strike against Jacobs. 3

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