Rowe v. Morton et al

Filing 28

OPINION AND ORDER: DENYING 11 Motion for Reconsideration; GRANTING 22 Motion for reconsideration of pauper status; GRANTING 25 Motion to Lift Stay. Stay lifted.. Signed by Judge William C Lee on 5/4/11. (jld)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
JEFFREY ALLEN ROWE,
Plaintiff,
v.
HOWARD MORTON, et al.,
Defendants.

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CAUSE NO. 3:10-CV-0249 WL

OPINION AND ORDER
While Jeffrey Allen Rowe, was confined as a prisoner at the Indiana State Prison
(“ISP”), he submitted a civil complaint alleging that ISP officials Howard Morton and
Pamela Banes were deliberately indifferent to his safety, resulting in his being assaulted
by another inmate. He also submitted a motion for leave to proceed in forma pauperis
pursuant to 28 U.S.C. 1915. Because it appeared that Rowe had accumulated three strikes
within the meaning of” 28 U.S.C. § 1915(g), the Court granted him leave to proceed in forma
pauperis only because he pled that he was in imminent danger of serious physical harm on
his claim that he was being denied protection from inmates who posed a threat to his
safety.
Rowe has now been transferred to the Pendleton Correctional Facility, and the
Defendants have moved to reconsider the order granting his request to proceed in forma
pauperis because he is no longer in imminent danger of injury at the ISP. The Court stayed
proceedings until this question was resolved. This matter is now before the Court on the
Defendants’ motion to reconsider the Plaintiff’s in forma pauperis status, the Plaintiff’s

motion in opposition to the Defendant’s motion to reconsider his pauper status, and the
Plaintiff’s motion to lift the stay entered in this case.
In their motion to reconsider the Plaintiff’s pauper status, the Defendants argue that
because Rowe is no longer at the Indiana State Prison he is no longer in imminent danger
of harm, and therefore should not be able to continue to proceed under the imminent
danger exception to 28 U.S.C. 1915. When the Court considered Rowe’s motion to proceed
in forma pauperis, district courts in this circuit were assessing “George” strikes, based George
v. Smith, 507 F.3d 605 (7th Cir. 2007). In George, the plaintiff was allowed to proceed on
some claims while other claims were dismissed. The Seventh Circuit stated that “George
thus incurs two strikes in this litigation — one for filing a complaint containing a frivolous
claim, another for an appeal raising at least one frivolous objection to the district court’s
ruling.” Id. at 608. Two of the three strikes assessed in this case against Rowe were George
strikes based on the dismissal of some, but not all, of the claims he presented in past
complaints.
In Gregory v. Turley, 625 F.3d 1005 (7h Cir. 2010), the Seventh Circuit revisited the
concept of George strikes in a case brought by an Illinois prisoner, and held that § 1915(g)
“assigns a strike for the dismissal of an ‘action’ and not a ‘claim.’” Id. at 1012. The Court
stated that “[o]ur holding today clarifies that a strike is incurred under § 1915(g) when an
inmate’s case is dismissed in its entirety based on the grounds listed in § 1915(g).” Id.
(Emphasis in original). The Seventh Circuit concluded that two of the three strikes against
Turley were “not strikes” because “[i]n each, the district court dismissed some claims for

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failure to state a claim, but the remaining claims were resolved on the merits. (Id. at 101213). Based on Gregory v. Turley, Rowe has not accumulated three valid strikes, therefore the
Court must deny the Defendant’s motion to reconsider Rowe’s informa pauperis status and
require him to pay the filing fee in full in order to continue to proceed with this action.
For the foregoing reasons, the court DENIES the Defendants’ motion for
reconsideration of the Court’s order allowing the Plaintiff to proceed in forma pauperis (DE
11), GRANTS the Plaintiff’s motion in opposition to the Defendant’s motion to reconsider
his pauper status (DE 22), GRANTS the Plaintiff’s motion to lift the stay entered in this case
(DE 25), and LIFTS the stay entered in this case.
SO ORDERED.
DATED: May 4, 2011
s/William C. Lee
William C. Lee, Judge
United States District Court

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