Miller v. Barrow et al

Filing 7

ORDER denying 6 Motion for Reconsideration . Signed by Judge Hugh Lawson on 7/26/2006. (nbp,HL)

Miller v. Barrow et al

Doc. 7

Case 7:06-cv-00055-HL-RLH

Document 7

Filed 07/26/2006

Page 1 of 2

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF GEORGIA VALDOSTA DIVISION CHARLES LAMAR MILLER, : : Plaintiff : : VS. : : DONALD BARROW; Lt. T. : FOUNTAIN, : : Defendants : ____________________________________:

CIVIL ACTION NO.: 7:06-CV-55 (HL)

ORDER

Pending before the Court is plaintiff's Motion for Reconsideration (R. at 6). For the reasons discussed below, this motion is DENIED. Plaintiff filed his original complaint and accompanying Motion for Leave to Proceed In Forma Pauperis on July 10, 2006 (R. at 1, 2). A review of Court records revealed that plaintiff had three previous strikes under 28 U.S.C. § 1915(g). Therefore, the Court denied plaintiff's request to proceed in forma pauperis and dismissed his action without prejudice. (R. at 4). Plaintiff now requests that the Court reconsider its decision because one of his previous cases­Miller v. Sikes, 3:04-CV-32 (DHB) (S.D. Ga. July 21, 2004)­was not dismissed as frivolous; but was dismissed without prejudice for failure to exhaust administrative remedies. Plaintiff is correct in his assertion that this case was dismissed for failure to exhaust administrative remedies. However, in Rivera v. Allen, 144 F.3d 719 (11th Cir. 1998), the United States Court of Appeals for the Eleventh Circuit explained that "[a] claim that fails to allege the requisite exhaustion of remedies is tantamount to one that fails to state a claim upon which relief may be granted." Id. at 731. Therefore, such a dismissal without prejudice for failure to exhaust counts as a strike under 28 U.S.C. § 1915(g). Rivera, 144 F.3d at 731. Based on Rivera, the Court's

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Case 7:06-cv-00055-HL-RLH

Document 7

Filed 07/26/2006

Page 2 of 2

July 21, 2004 dismissal without prejudice of Miller v. Sikes, 3:04-CV-32 (DHB) counts as a strike. Moreover, plaintiff then appealed this dismissal and the United States Court of Appeals for the Eleventh Circuit dismissed the appeal as frivolous on November 3, 2004. This dismissal counts as another strike under 28 U.S.C. § 1915(g). See Al-Hakim v. Crosby, No. 4:05-CV-230, 2006 U.S. Dist. LEXIS 44850 (N. D. Fla. April 21, 2006). In addition to these two strikes, plaintiff had a third case dismissed as frivolous: Miller v. Daniel, 1:04-CV-143 (CC) (N.D. Ga. July 2, 2004). Therefore, plaintiff has had three strikes under 28 U.S.C. § 1915(g), and he may not proceed in forma pauperis in this action. For these reasons, the Court DENIES Plaintiff's Motion for Reconsideration. SO ORDERED, this 26th day of July, 2006

s/ Hugh Lawson HUGH LAWSON UNITED STATES DISTRICT JUDGE lnb