Dunahue v. Hobbs et al
ORDER adopting in part 39 Partial Recommended Disposition; denying 33 Motion to Dismiss. The Court does not adopt Judge Deere's recommendation that Dunahue v. Smallwood, E.D. Ark. Case No. 5:07CV00136, be counted as a strike, leaving that issue to be decided if and when it would be dispositive of the case. Signed by Judge J. Leon Holmes on 3/3/2015. (ks)
IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
PINE BLUFF DIVISION
REGINALD L. DUNAHUE, ADC #106911
NO. 5:14CV00331 JLH/BD
RAY HOBBS, et al.
The defendants moved to dismiss Reginald Dunahue’s complaint on the ground that Dunahue
has three strikes under 28 U.S.C. § 1915(g) and therefore cannot proceed in forma pauperis. United
States Magistrate Judge Beth Deere submitted a partial recommended disposition in which she
recommended that the Court deny the motion to dismiss because two of Dunahue’s prior dismissals
should not count as strikes. Defendants have objected to the Judge Deere’s recommendation with
respect to one of the prior dismissals but not to the other. In other words, the defendants concede
that Dunahue does not have three strikes. Instead, according to them, he has two strikes.
Because the defendants concede that Dunahue does not have three strikes, the motion to
dismiss is DENIED, without reaching the issue of whether Dunahue currently has one strike or two
strikes. It is unnecessary to decide the issue of whether Dunahue has one strike or two, so that issue
will be left to be decided on another occasion if and when Dunahue seeks to proceed in forma
pauperis and the issue arises as to whether he has three strikes. The partial recommended
disposition is therefore adopted in part. Document #39. The Court does not adopt Judge Deere’s
recommendation that Dunahue v. Smallwood, E.D. Ark. Case No. 5:07CV00136, be counted as a
strike, leaving that issue to be decided if and when it would be dispositive of the case.
IT IS SO ORDERED this 3rd day of March, 2015.
UNITED STATES DISTRICT JUDGE
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