JACKSON v. FROMM

Filing 25

ORDER ACCEPTING AND ADOPTING 23 REPORT AND RECOMMENDATION. Denying 12 Motion to Dismiss. Signed by JUDGE MARK E WALKER on 1/14/13. (pll)

IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF FLORIDA
PANAMA CITY DIVISION

DARRELL L. JACKSON,
Plaintiff,
v.

CASE NO. 5:11-CV-414-MW-GRJ

H. FROMM,
Defendant.
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ORDER ACCEPTING AND ADOPTING REPORT AND
RECOMMENDATION

This Court has considered the Magistrate’s Report and Recommendation,
ECF No. 23, filed December 27, 2012. This Court has also reviewed de novo
Plaintiff’s Objections to the Report and Recommendation , ECF No.24, filed
January 10, 2013. Upon consideration,
IT IS ORDERED:
The report and recommendation is accepted and adopted as this Court’s
opinion with comment. While the Eleventh Circuit has not addressed the issue,
consistent with the view of the Seventh, Tenth, Fourth and D.C. Circuits, this
Court concludes that dismissal of less than all of a prisoner’s claims in an action

does not result in a “strike” for purposes of the three strike rule under § 1915(g).
As for Thomas v. Parker, 672 F.3d 1182, 1183 (10th Cir. 2012), as noted by the
Magistrate, the Tenth Circuit explicitly recognized that “[b]ecause the statute refers
to dismissals of ‘actions,’ as opposed to ‘claims,’ it is well established that a partial
dismissal based on one of the grounds enumerated in § 1915(g) is generally not a
basis for assessing a strike.” The fact that Thomas went on to address a different
issue, whether the dismissal of all claims, some as frivolous and others for failure
to exhaust, does not in any way undermine its more general observation regarding
a partial dismissal.
SO ORDERED on January 14, 2013.
s/Mark E. Walker
United States District Judge