MATTHEWS v. FEDERAL BUREAU OF INVESTIGATION

Filing 31

ORDER: This case is hereby DISMISSED WITHOUT PREJUDICE pursuant to section 1915(g) of Title 28 of the United States Code. See attached document for details. Signed by Judge Randolph D. Moss on 9/30/2016. (lcrdm3, )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

ALEXANDER OTIS MATTHEWS,
Plaintiff,
v.

Civil Action No. 15-569 (RDM)

FEDERAL BUREAU OF
INVESTIGATIONS,
Defendant.

MEMORANDUM OPINION AND ORDER
Plaintiff Alexander Otis Matthews, a pro se prisoner, brings this action under the
Freedom of Information Act (“FOIA”) against the Federal Bureau of Investigations (“FBI”),
seeking records about himself. In August 2015, the FBI moved to dismiss on the ground that
Matthews had failed to pay the required FOIA processing fee. Dkt. 12. Subsequently, the FBI
notified the Court that Matthews had paid that fee. Dkt. 17. The Court, accordingly, denied the
motion to dismiss as moot and set a schedule for the production of non-exempt records and for
Matthews to notify the Court if he intended to challenge the adequacy of the FBI’s production.
Minute Order Oct. 8, 2015. At the same time, the Court set a schedule for briefing on any
dispositive motions. Id.
After Matthews indicated that he would object to the FBI’s production, the FBI moved
for summary judgment. Dkt. 24. Although the FBI briefed only the merits of the dispute in its
opening brief, it raised a new, threshold issue in its reply brief. Dkt 28. As the FBI explained,
Matthews is a pro se prisoner proceeding in forma pauperis, who has litigated at least “26 civil
matters filed in the U.S. district courts and 20 appellate matters in the U.S. circuit courts.” Id. at

2. The FBI further reported that, “[w]ithout reviewing every case, at least four decisions show
that his litigation has resulted in a ruling that he has failed to state a claim.” Id.
If correct, that litigation record poses a problem for Matthews under the Prison Litigation
Reform Act, and, in particular, under the “three strikes” rule contained in 28 U.S.C. § 1915(g).
That rule bars a prisoner from proceeding in forma pauperis “if the prisoner has, on 3 or more
prior occasions, while incarcerated or detained in any facility, brought an action . . . dismissed on
the ground that it is frivolous, malicious, or fails to state a claim upon which relief may be
granted.” 1 28 U.S.C. § 1915(g). If the Court determines that a pro se prisoner, who has not paid
the filing fee, has three or more strikes, it may dismiss the action without prejudice, pending
filing of the fee. See Harris v. City of New York, 607 F.3d 18, 23 (2d Cir. 2010) (“[D]istrict
courts may apply the three strikes rule sua sponte . . . [because one] purpose of the statute was to
give district courts greater power to protect their dockets from meritless lawsuits.”).
Matthews, then, filed a sur-reply addressing the four “strikes” that the FBI identified in
its reply brief. Dkt. 29. As to two of the “strikes,” Matthews argues that the apparent dismissals
for failure to state a claim were mistakes that were subsequently corrected. Id. at 1. In another,
he says that a magistrate judge erroneously denied his request to file based on the “three strikes”
rule, but that the district judge corrected that error. Id. And, in the final case, he argues that the
dismissal for failure to state a claim “is on appeal or is still under a motion for reconsideration,”
id,, and thus should not count for present purposes. The Court notes, however, that a dismissal
for one of the reasons proscribed by § 1915(g) counts as a “strike,” notwithstanding a pending
appeal. See Coleman v. Tollefson, 135 S. Ct. 1759, 1761 (2015).

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Although the “three strikes” rule does not apply if the prisoner is “under imminent danger of
serious physical injury,” id., that exception clearly does not apply in the present context.

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In its final brief on the issue, the FBI concedes that, in two of the cases on which it relied,
the question whether Matthews has “three strikes” is “still pending.” Dkt. 30 at 4. From this
concession, however, the FBI goes on to assert that “it no longer urges the Court to dismiss this
case without prejudice until Plaintiff pays his fees.” Id. That, however, does not resolve the
matter. Rather, as the FBI initially observed, Matthews has filed at least twenty-six district court
cases and twenty appeals. This Court has a duty to determine whether Matthews is entitled to
proceed in forma pauperis, and cannot simply accept the FBI’s sample of four cases. Thompson
v. DEA., 492 F.3d 428, 435 (D.C. Cir. 2007) (explaining that, although the defendant bears the
burden of production in establishing a § 1915(g) “strike,” “[s]uch evidence must be
produced . . . , when readily available, by the court itself”).
Upon the Court’s own review of Matthews’s litigation records, it appears that, before
Matthews filed the instant action on April 16, 2015, he had filed at least four different actions
that were dismissed as frivolous or for failure to state a claim, and which therefore constitute
“strikes” for purposes of 28 U.S.C. § 1915(g):
(1) Matthews v. Sobh, No. 12-cv-294 (E.D. Va. Apr. 11, 2012), ECF No. 2;
(2) Matthews v. Hull, No. 13-cv-450 (E.D. Va. Feb. 12, 2014), ECF No. 35;
(3) Matthews v. Sullivan, No. 14-cv-500 (D. Md. May 23, 2014), ECF No. 9;
(4) Matthews v. HSBC Bank, USA, Nat’l Ass’n, No. 14-cv-810 (E.D. Va. July 26, 2014),
ECF No. 15.
The Court, accordingly, must dismiss the action without prejudice.

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CONCLUSION
The case is hereby DISMISSED without prejudice pursuant to 28 U.S.C. § 1915(g).
SO ORDERED.
/s/ Randolph D. Moss
RANDOLPH D. MOSS
United States District Judge

Date: September 30, 2016.

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