Williams v. Lockhart et al

Filing 38

ORDER denying 36 Motion to Quash. Signed by Magistrate Judge H. David Young on 3/4/09. (dac)

IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS HELENA DIVISION THELMA WILLIAMS, JR. ADC #93197 V. DOUGLAS LOCKHART et al. ORDE R Plaintiff filed this complaint on October 8, 2008, and was granted in forma pauperis status. Defendants have now filed a motion to quash Plaintiff's in forma pauperis status, along with a brief in support (docket entries #36 & #37). Under the three-strikes provision of the Prison Litigation Reform Act ("PLRA"), the Court must dismiss a prisoner's in forma pauperis action at any time, sua sponte or upon a motion of a party, if it determines that the prisoner has "on 3 or more prior occasions, while incarcerated or detained in any facility, 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). Defendants identify four cases which they contend qualify as strikes, all from this district: Williams v. Gibson et al., ED/AR No. 5:07CV00178, and the 8th Circuit appeal of that case; Williams v. Bennett et al., ED/AR No. 5:07CV179, Williams v. Smallwood et al., ED/AR 5:07CV181.1 Defendants also contend that Plaintiff filed a frivolous appeal in this case. In their motion, Defendants also mentioned Williams v. Outlaw et al., ED/AR 2:08CV131, but that case was dismissed after a Court trial, and an appeal is pending. 1
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PLAINTIFF NO: 2:08CV00182 BSM/HDY DEFENDANTS

Even if Plaintiff has three strikes now, the question is whether Plaintiff had three strikes at the time he filed this complaint. See Campbell v. Davenport Police Dept., 471 F.3d 952 (8th Cir. 2006) (section 1915(g) does not apply unless the inmate litigant has three strikes at the time he files his lawsuit or appeal). In Campbell, the Court also made clear that even a case dismissed as a strike does not count as a strike until the inmate has exhausted or waived his appeals. Id. at 953. Applying these principles to the cases Defendants cite, Plaintiff had not accumulated three strikes at the time he filed this lawsuit. In Williams v. Gibson et al., ED/AR No. 5:07CV00178, the District Court dismissed the complaint as a strike on August 13, 2007, and the Court of Appeals summarily affirmed that decision on February 13, 2008. Thus, that dismissal counted as a strike before Plaintiff filed this case. The Court of Appeals did not, however, specifically identify the appeal as a strike. A summary affirmance under Eighth Circuit Rule 47A does not automatically qualify as a strike. Owens v. Isaac, 487 F.3d 561, 563 (8th Cir. 2007).2 Plaintiff's unsuccessful appeal therefore was not a strike. Williams v. Bennett et al., ED/AR No. 5:07CV179, was dismissed as a strike by the District Court on July 17, 2007, and the Circuit Court summarily affirmed the decision on February 13, 2008. However, Plaintiff filed a petition for a writ of certiorari with the United States Supreme Court, which denied the writ on October 17, 2008. Thus, that dismissal did not count as a strike at the time this case was filed. Finally, Williams v. Smallwood et al., ED/AR 5:07CV181 was dismissed for failure to state a claim by the District Court on September 13, 2007. However, the Court of Appeals did not affirm that judgment until December 8, 2008, and that

The Court of Appeals has found a summary affirmance qualified as a strike in at least one case, Higgins v. Carpenter, 258 F.3d 797, 801 (8th Cir. 2001), but this constituted a finding in that case. See also Henderson v. Norris, 129 F.3d 481, 485 n.4 (8th Cir. 1997)(Court found appeal frivolous but noted that affirmance did not automatically result in a frivolous finding). 2

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dismissal was not a strike at the time this case was filed. Accordingly, Plaintiff had not accumulated three strikes at the time he filed this case, and he is entitled to proceed in forma pauperis. IT IS THEREFORE ORDERED THAT Defendants motion to quash Plaintiff's in forma pauperis status (docket entry #36) is DENIED. IT IS SO ORDERED this 4 day of March, 2009.

UNITED STATES MAGISTRATE JUDGE

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