Jones-El v. Lombardi et al

Filing 12

MEMORANDUM AND ORDER re: 10 MOTION for Reconsideration re 8 Order of Dismissal pursuant to 28U.S.C.1915(g), 7 Memorandum & Order, filed by Plaintiff Eugene Kenneth Jones-El; motion is DENIED. Signed by District Judge Stephen N. Limbaugh, Jr on 4/17/13. (CSG)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
SOUTHEASTERN DIVISION
EUGENE KENNETH JONES-EL,
Plaintiff,
v.
GEORGE LOMBARDI, et al.,
Defendants.

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No. 1:13CV43 SNLJ

MEMORANDUM AND ORDER
This matter is before the Court on plaintiff’s motion for reconsideration of
the dismissal of his complaint pursuant to 28 U.S.C. § 1915(g), pursuant to the
“three strikes” provision of the statute.
Under § 1915(g), if a prisoner has filed at least three previous cases that
were dismissed as frivolous, malicious or for failure to state a claim, a Court may
not grant a motion for leave to proceed in forma pauperis unless a plaintiff is
“under imminent danger of serious physical injury.” The Court reviewed
plaintiff’s litigation history and found that he had three prior cases that were
dismissed under 28 U.S.C. § 1915(e)(2)(B). See Jones v. Joyce, 4:10CV369 FRB
(E.D. Mo.); Jones v. Joyce, 4:09CV1972 CEJ (E.D. Mo.);and Jones v. Sayle,
4:98CV17 ERW (E.D. Mo.). After reviewing the allegations contained in the
complaint and ascertaining that plaintiff was not in imminent danger of serious

physical injury, the Court dismissed the action pursuant to § 1915(g) on March 7,
2013.
Plaintiff asserts that his prior cases should not be counted as “strikes” under
the statute, and he points this Court to an order from a Judge in the United States
District Court for the Western District noting that the prior cases were “dismissed
without prejudice.” Plaintiff asserts that the Western District does not normally
count a dismissal without prejudice as a strike. See Jones v. Webster, No. 104058-CV-C-NKL-P (W.D. Mo.) Docket Entry No. 84. Although the United States
District Court for the Western District of Missouri may vary from this Court in
their practices under § 1915(g), the Eighth Circuit, has held that “the text of §
1915(g) draws no distinction between dismissals with prejudice and dismissals
without prejudice.” Orr v. Clements, 688 F.3d 463, 465 (8th Cir. 2012). Thus, the
Eighth Circuit has concluded that dismissals without prejudice may count as
strikes under the statute. Id. This Court follows such a practice.
Plaintiff further asserts that one of the cases counted as a “strike” by this
Court should not have been counted as a “strike,” because it was dismissed as
“Heck barred.”1 Plaintiff is again incorrect. Claims dismissed under Heck count
as “strikes” under § 1915(g). See Armentrout v. Tryra, 175 F.3d 1023, 1999 WL
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Heck v. Humphrey, 512 U.S. 477 (1994).
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86355 (8th Cir. Feb. 9, 1999). Similarly, claims dismissed for statute of
limitations grounds, as one of the cases cited above was, also count as a “strike”
under § 1915(g). See, e.g., Nealy v. Kamas, 2013 WL 140111, *2 (W.D. N.Y. Jan.
10, 2013); Fullove v. Evan, 2012 WL 6045352, *3 (S.D. Miss. Dec. 5, 2012).
Last, plaintiff asserts that the Western District’s provisional grant of pauper
status prior to transferring the case to this Court should override the Court’s denial
of his request for in forma pauperis status at the conclusion of this case. The very
essence of a provisional ruling means that it may be changed after full review in
the transferor Court. As such, plaintiff’s argument is without merit.
In light of the aforementioned, plaintiff’s motion for reconsideration of the
dismissal of his action pursuant to 28 U.S.C. § 1915(g) will be denied.
Accordingly,
IT IS HEREBY ORDERED that plaintiff’s motion for reconsideration of
the dismissal of this action [Doc. #10] is DENIED.
Dated this 17th day of April, 2013.

STEPHEN N. LIMBAUGH, JR.
UNITED STATES DISTRICT JUDGE
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