Surles v. Leach et al

Filing 50

ORDER granting 45 Motion to Amend/Correct. Signed by District Judge Paul D. Borman. (DTof)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
SAMUEL SURLES,
Plaintiff,
Case No. 12-cv-12403
v.
Paul D. Borman
United States District Judge
GAYLE LEACH, RAYMOND
BOOKER, and MARVA MYLES

Mona K. Majzoub
United States Magistrate Judge

Defendants.
_____________________________/

ORDER GRANTING MDOC DEFENDANTS’
MOTION TO AMEND JUDGMENT (Dkt. No. 45)
Before the Court is MDOC Defendants Gayle Leach, Raymond Booker and Marva Myles’
Motion to Amend Judgment pursuant to Fed. R. Civ. P. 59(e) and E.D. Mich. LR 59.1. (Dkt. No.
45). Defendants’ request that this Court amend its judgment to include language indicating that its
previous dismissal was a strike “as described by 28 U.S.C. § 1915(g).”
On October 31, 2013 this Court adopted Magistrate Judge Majzoub’s report and
recommendation granting MDOC Defendants’ Motion to Dismiss for failure to state a claim
pursuant to Fed. R. Civ. Pro. 12(b)(6). (Dkt. No. 43). Defendants now ask the Court to issue an
amended judgment indicating that the dismissal counted as a “litigation strike” under 28 U.S.C. §
1915(g). Pursuant to § 1915(g),
In no event shall a prisoner bring a civil action or appeal a judgment in a civil action
or proceeding under this section if the prisoner has, on 3 or more prior occasions,
while incarcerated or detained in any facility, brought an action or appeal in a court
of the United States that was dismissed on the grounds that it is frivolous, malicious,
or fails to state a claim upon which relief may be granted, unless the prisoner is under
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imminent danger of serious physical injury.
28 U.S.C. § 1915(g) (emphasis added). This statutory provision is popularly known as the “three
strikes” provision of the Prison Litigation Reform Act of 1995. See Wilson v. Yaklich, 148 F.3d 596,
602 (6th Cir. 1998).
The present action was dismissed for failure to state a claim. As a result, the Court finds that
pursuant to the plain language of § 1915(g), its previous judgment dismissing Plaintiff’s complaint
is a strike as described in § 1915(g). Therefore, it is appropriate to grant Defendants’ Motion to
Amend which seeks an amended judgment noting that the dismissal is one described in § 1915(g).
For these reasons, the Court GRANTS Defendants’ Motion to Amend the Judgment (Dkt.
No. 45) and an Amended Judgment will be ENTERED.
SO ORDERED.

s/Paul D. Borman
PAUL D. BORMAN
UNITED STATES DISTRICT JUDGE
Dated: December 2, 2013
CERTIFICATE OF SERVICE
The undersigned certifies that a copy of the foregoing order was served upon each attorney or party
of record herein by electronic means or first class U.S. mail on December 2, 2013.

s/Deborah Tofil
Case Manager

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