Smith v. Birtch et al

Filing 13

MEMORANDUM AND ORDER re: 9 MOTION for Reconsideration re 7 Order of Dismissal pursuant to 28U.S.C.1915(g), filed by Plaintiff Derrick R. Smith. IT IS HEREBY ORDERED that plaintiff's motion for reconsideration of the dismissal of the complaint [Doc. #9] is DENIED. Signed by District Judge Stephen N. Limbaugh, Jr on 10/13/16. (CSG)

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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MISSOURI SOUTHEASTERN DIVISION DERRICK R. SMITH, Plaintiff, v. KIMBERLY BIRCH, et al., Defendants. ) ) ) ) ) ) ) ) ) No. 1:16-CV-223 ACL MEMORANDUM AND ORDER This matter is before the Court on plaintiff=s motion for reconsideration of the dismissal of this action. Plaintiff, a prisoner, has filed at least three previous cases that were dismissed as frivolous, malicious, or for failure to state a claim.1 Under 28 U.S.C. § 1915(g), therefore, the Court may not grant the motion unless plaintiff “is under imminent danger of serious physical injury.”2 Additionally, plaintiff’s allegations in this case are duplicative of his allegations in another case currently pending in this Court. See Smith v. Wallace, 1:14CV146 SNLJ. He claims that he has an ongoing dispute with the medical personnel at the prison over whether or not he is entitled to use a wheelchair. Plaintiff claims he has been issued discipline as a result of refusing to walk when asked to do so, and he asserts he has been placed in Administrative Segregation as retaliation for requesting use of a wheelchair for his “bad” back. These claims are duplicative of 1 See Smith v. Crawford, No. 09-6068-CV-SJ-HFS-P (W.D.Mo. 2009); Smith v. Phillips, No. 1:14CV186 ACL (E.D.Mo. 2015); Smith v. Beggs, No. 1:16CV89 SNLJ (E.D.Mo. 2016). 2 Plaintiff argues that Smith v. Phillips, No. 1:14CV186 ACL (E.D.Mo. 2015) should not be counted as a “strike” because it was dismissed “without prejudice.” Although the case was dismissed without prejudice, it was dismissed as legally frivolous, pursuant to 28 U.S.C. § 1915(e)(2)(B). Such a case is counted as a “strike” under 28 U.S.C. 1915(g). his ongoing claims in his open case before this Court and currently do not indicate that he is in imminent danger of current physical injury. As a result, the Court will deny the motion for reconsideration. Accordingly, IT IS HEREBY ORDERED that plaintiff’s motion for reconsideration of the dismissal of the complaint [Doc. #9] is DENIED. Dated this 13th day of October, 2016. STEPHEN N. LIMBAUGH, JR. UNITED STATES DISTRICT JUDGE 2

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