Smith v. State of Missouri et al
OPINION MEMORANDUM AND ORDER IT IS HEREBY ORDERED that the Court finds that plaintiffs motion for reconsideration [Doc. #13-2] raises a substantial issue.IT IS HEREBY ORDERED that plaintiffs motion for leave to proceed in forma pauperis on appeal [Doc. #13-1] is GRANTED. 13 Signed by District Judge Henry Edward Autrey on 6/22/15. (CLA)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
STATE OF MISSOURI, et al.,
No. 2:15CV32 JMB
OPINION, MEMORANDUM AND ORDER
This matter is before the Court on plaintiff=s motion for leave to proceed in forma
pauperis on appeal [Doc. #13-1], as well as his motion for reconsideration of the dismissal of his
case on the basis of “three strikes.”1
Plaintiff filed his complaint in this action pursuant to 42 U.S.C. § 1983 on May 7, 2015.
Although plaintiff’s complaint was difficult to decipher, plaintiff’s complaint contained a myriad
of claims against many different defendants, including: false arrest, false imprisonment, slander,
unlawful conviction, malicious prosecution, deliberate indifference to his medical needs (relating
to fainting), various due process violations, failure to protect and numerous claims challenging
his conviction which were not cognizable in a § 1983 action. Because it appeared that plaintiff
had filed at least three previous cases that were dismissed as frivolous, malicious, or for failure to
state a claim,2 the Court dismissed the action pursuant to 28 U.S.C. ' 1915(g).
In his motion for reconsideration, plaintiff claims, in a verified pleading, that one of the
“strikes” cited by the Court was not the “Jonathan Smith” who is the plaintiff in this action.
Plaintiff filed his motion for reconsideration within his motion for leave to proceed in forma
pauperis on appeal. See Docket No. 13-2.
Smith v. Bauersaches, 3:05CV916 JPG (S.D. IL 2006); Smith-El v. Bowersox, 03-3457-CV-SRED-P (W.D. Mo.2004); Smith v. Lhotka, 4:97CV1940 SNLJ (E.D. Mo.1997).
Moreover, plaintiff asserts that he “is under imminent danger of serious physical injury,” which
is a noted exception to a § 1915(g) dismissal. Namely, he explains that part of the “syncope”
disorder he suffers from was a result of blood clots which were left untreated by the doctors at
Moberly Corrections Center, and this was the basis of his deliberate indifference claim under the
Eighth Amendment. Given the aforementioned, it appears that plaintiff’s requested relief from
judgment would be appropriate under Federal Rule of Civil Procedure 60(b)(6).
However, because plaintiff has filed a Notice of Appeal [Doc. #12], the Court lacks
authority to grant plaintiff’s motion for reconsideration. See Fed. R. Civ. P. 62.1. The Federal
Rules of Civil Procedure provide that the Court may: “(1) defer considering the motion; (2) deny
the motion; or (3) state either that it would grant the motion if the court of appeals remands for
that purpose or that the motion raises a substantial issue.” Id. The Court finds that, at the very
least, plaintiff’s motion raises a substantial issue to the very ground upon which the Court based
its decision to dismiss this action.
Therefore, the Court will enter an Order stating that plaintiff’s motion for reconsideration
raises a substantial issue. Rule 62.1 requires plaintiff to “promptly notify the circuit clerk under
Federal Rule of Appellate Procedure 12.1” that the Court entered this Order. The Eighth Circuit
may, in its discretion, remand for this Court to address the substantial issue raised by plaintiff’s
motion for reconsideration. See Fed. R. Civ. P. 62.1 advisory notes (2009).
IT IS HEREBY ORDERED that the Court finds that plaintiff’s motion for
reconsideration [Doc. #13-2] raises a substantial issue.
IT IS HEREBY ORDERED that plaintiff’s motion for leave to proceed in forma
pauperis on appeal [Doc. #13-1] is GRANTED.
Dated this 22nd day of June, 2015.
HENRY EDWARD AUTREY
UNITED STATES DISTRICT JUDGE
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?