Brown v. Parrish et al

Filing 28

OPINION AND ORDER denying 21 Motion to Compel; finding as moot 22 Motion to Stay. Signed by Magistrate Judge Terence P Kemp on 04/14/2011. (sr)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
Frank C. Brown, Jr.,

:

Plaintiff,

:

v.

:

Warden Deb Timmerman-Cooper,
et al.,
Defendants.

Case No. 2:10-cv-283

:

JUDGE EDMUND A. SARGUS, JR.
Magistrate Judge Kemp

:

Frank C. Brown, Jr.,

:

Plaintiff,

:

v.

:
:

Russ Parish, et al.,
Defendants.

Case No.

2:10-cv-352

JUDGE EDMUND A. SARGUS, JR.
Magistrate Judge Kemp

:

Frank C. Brown Jr.,

:

Plaintiff,

:

v.

Case No.

2:10-cv-967

:

Warden Deb Timmerman-Cooper
et al.,
Defendants.

:

JUDGE EDMUND A. SARGUS
Magistrate Judge Kemp

:
OPINION AND ORDER

Plaintiff, Frank C. Brown, is a state prisoner incarcerated
at the London Correctional Institution.

Mr. Brown has several

related actions pending in this Court regarding the conditions of
his incarceration.

In each of these actions, Mr. Brown requested

and was granted leave to proceed in forma pauperis.

On January

31, 2011, defendants filed in each of the three cases identified
in the caption of this order a motion entitled “Defendant’s

Motion to Compel Immediate Payment of Full Filing Fees and For
Related Relief Under the Three Strikes Provision of the PLRA,”
and they also moved to stay each case pending a decision on that
motion.

Mr. Brown has responded.

For the following reasons, the

Court will deny both motions.
I.
The following statement of facts is taken from the
defendants’ motion and is not in dispute.

Mr. Brown has had

three actions dismissed in courts of the United States for
failure to state a claim upon which relief can be granted.

The

first was Frank C. Brown, Jr. v. Corrections Officer Porter, Case
No. 1:10-cv-1736, which was dismissed on September 28, 2010 in
the Northern District of Ohio.

This case is currently on appeal

to the United States Court of Appeals for the Sixth Circuit as
Case. No. 10-4303.

The second was Frank C. Brown, Jr. v.

Harwood, Case No. 2:10-cv-880, which was dismissed on January 6,
2011 by this Court.

This case is also currently on appeal as

Case No. 11-3082 to the Sixth Circuit.

The third was Frank C.

Brown, Jr. v. Blackwell, Case No. 2:10-cv-966, which was also
dismissed January 6, 2011 by this Court.

Two of Mr. Brown’s

three dismissed actions were dismissed after the present action
was filed and two of them are on appeal.
II.
28 U.S.C. §1915(g) states:
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
imminent danger of serious physical injury. (emphasis
added)
Defendants’ motion argues that because Mr. Brown has now had
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three actions dismissed for failure to state a claim upon which
relief can be granted in courts of the United States, he now has
“three-strikes” and may no longer proceed in forma pauperis under
§1915(g).

They therefore ask the Court to revoke its prior

orders granting Mr. Brown leave to proceed in forma pauperis and
require him to pay the full filing fee.

The issue here is

whether the text of §1915(g) allows the Court to apply its “three
strikes” provisions to pending cases in the manner defendants
suggest.
Although defendants have not cited any case law addressing
the question of whether a prisoner litigant who acquires a third
“strike” during the pendency of a case may be required to pay the
full filing fee immediately, this is not an issue of first
impression.

In Cruz v. Marcial, 2002 WL 655520 (D. Conn. April

18, 2002), the defendants asked the court to apply §1915(g) to an
inmate plaintiff who acquired his third “strike” (as well as
several additional “strikes”) during the pendency of that case.
Focusing on the language of the statute, and particularly the
word “bring,” the court concluded that the statute applies only
to the act of commencing a case, not continuing it after
commencement, and held that “inasmuch as the plain language of
§1915(g) limits its applicability to the commencement of suits,
defendants' arguments are unavailing.”

Id. at *2.

Cruz was followed in Eady v. Lappin, 2007 WL 1531879, *3
(N.D.N.Y. May 22, 2007), where the court held that the “plain
language” of §1915(g) foreclosed the relief sought by the
defendants, and that “dismissals, which post-date the filing of
this action, may not count as ‘strikes’ for purposes of
determining whether or not Plaintiff may proceed (or may continue
to proceed) in forma pauperis in the current action.”

See also

Zaire v. Welch, 2008 WL 934426 (N.D.N.Y. March 31, 2008); cf.
Garcia v. Silbert, 141 F.3d 1415 (10th Cir. 1998) (holding that
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by its plain language, §1915(g)’s three strikes provision did not
apply retroactively to a case which had been brought in the
district courts at the time of its enactment); Gibbs v. Ryan, 160
F.3d 160, 163

(3d Cir. 1998)(same, noting that “subsection (g)

was intended to apply only at the time an indigent prisoner files
a complaint or an appeal, and was not intended to apply later in
the course of the proceeding”).
There is at least some indirect authority which supports
defendants’ reading of the statute, however.

In McGrew v. Barr,

2011 WL 1107195, *2 (M.D. La. March 22, 2011), a case in which
the plaintiff acquired two additional strikes after being granted
leave to proceed without immediate payment of the full filing
fee, the court’s opinion stated that the question to be resolved
was “whether these last two frivolous dismissals from the Fifth
Circuit, which both count as strikes against plaintiff, but were
rendered after the pending case was filed and IFP status granted,
can cause this court to determine that plaintiff's IFP status
should be revoked.”
here.

That is the same issue raised by defendants

McGrew, however, does not ultimately answer that question

directly, because although the court did revoke the plaintiff’s
in forma pauperis status, it relied on the ground that “plaintiff
has at least the three mentioned strikes against him and has
indeed abused his privilege to invoke the in forma pauperis
status based upon the multiple lawsuits filed and the
overabundance of dismissals, voluntarily and involuntarily.”
at *4.

Id.

Revoking the in forma pauperis status of a litigant for

abuse of the system is a legitimate action to be taken, whether
the litigant is a prisoner or not, but it is a separate
conceptual ground from acquiring a third “strike” under §1915(g).
See, e.g., Maxberry v. S.E.C., 879 F.2d 222, 224 (6th Cir.
1989)(revoking a non-prisoner’s right to file actions in forma
pauperis based on his “history of unsubstantial and vexatious

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litigation”).
Further, McGrew relied on the decision in Adepegba v.
Hammons, 103 F.3d 383 (5th Cir.1996), which applied the three
strikes provision of §1915(g) retroactively to a pending appeal
(something that no other Court of Appeals has done).

That

decision, while binding on district courts within the Fifth
Circuit such as the McGrew court, is of course, not binding here.
Further, this Court does not find it persuasive because it
contains no discussion of the precise language of §1915(g) which
is at issue in this case, perhaps because the word “bring”
appears to modify the phrase “a civil action” only; as to the
pursuit of an appeal, which was the issue in Adepegba, the
statutory phrasing is not “bring an appeal” but rather “appeal a
judgment....”

And, although there is a reasonable argument to be

made that “appeal a judgment” means “pursue an appeal already
pending” rather than “file a notice of appeal,” every court which
has specifically considered that language has chosen the latter
reading.

See Chandler v. District of Columbia Dept. of

Corrections, 145 F.3d 1355 (D.C. Cir. 1998); Canell v. Lightner,
143 F.3d 1210, 1212-13, (9th Cir.1998); Abdul-Wadood v. Nathan,
91 F.3d 1023, 1025 (7th Cir.1996); see also White v. Gregory, 87
F.3d 429, 430 (10th Cir. 1996).
Based on this precedent, the overwhelming weight of
authority supports the conclusion that the word “bring” found in
§1915(g) means exactly what it says.

This Court agrees.

With

respect to the interpretation of a statute enacted by Congress,
"it is elementary that '[t]he starting point in every case
involving construction of a statute is the language itself.'"
Southeastern Community College v. Davis, 442 U.S. 397, 405
(1979), quoting Blue Chip Stamps v. Manor Drug Stores, 421 U.S.
723, 756 (1975)(Powell, J., concurring); see also United States
v. Ron Pair Enterprises, Inc., 489 U.S. 235, 241 (1989). If the
statutory language is plain, it conclusively establishes the
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intent of the legislature except in those rare cases where
the result of giving the statute its plain meaning is
demonstrably different from the clear intent of the drafters
of the statute. United States v. Ron Pair Enterprises, Inc.,
489 U.S. at 242; see also United States v. Underhill, 813
F.2d 105, 111 (6th Cir.), cert. denied sub nom. Rayburn v.
United States, 482 U.S. 906 (1987).
Strict adherence to the rule that a statute is to be
given its plain meaning has significant desirable
consequences. First, it discourages judicial legislating,
thereby keeping the legislative power vested in the
appropriate and popularly-elected branch of government. It
also encourages the drafters of legislation to speak plainly
and precisely, knowing that if they do so, the courts will
enforce the law as it has been clearly articulated. Finally,
it promotes certainty in the law, eliminating the need for
resort to other interpretive devices such as a review of
legislative history, which is usually a grab-bag from which
support for almost any interpretation of a statute can
readily be plucked.
The relevant statutory language in this case is the phrase
“bring a civil action,” which is also followed by the use of the
word “prior” with respect to the “three strikes” which disqualify
a prisoner from proceeding in forma pauperis.

Since Mr. Brown

did not “bring” this action at a time when he had accumulated
three “strikes” arising from “prior” dismissals, this statutory
section, by its own clear language, simply may not be applied to
this case.

Therefore, the defendants’ motion lacks merit.
III.

Based on the foregoing reasons, defendants’ Motions to
Compel Immediate Payment of Full Filing Fees and For Related
Relief Under the Three Strikes Provision of the PLRA (#21 in
Cases No. 2:10-cv-283 and 10-cv-352, and #12 in Case No. 2:10-cv967) are denied.

The accompanying motions to stay the cases
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pending resolution of the filing fee issue (#22 in Cases No.
2:10-cv-283 and 10-cv-352, and #14 in Case No. 2:10-cv-967) are
denied as moot.
IV.
Any party may, within fourteen days after this Order is
filed, file and serve on the opposing party a motion for
reconsideration by a District Judge.

28 U.S.C. §636(b)(1)(A),

Rule 72(a), Fed. R. Civ. P.; Eastern Division Order No. 91-3, pt.
I., F., 5.

The motion must specifically designate the order or

part in question and the basis for any objection.

Responses to

objections are due fourteen days after objections are filed and
replies by the objecting party are due seven days thereafter.
The District Judge, upon consideration of the motion, shall set
aside any part of this Order found to be clearly erroneous or
contrary to law.
This order is in full force and effect, notwithstanding the
filing of any objections, unless stayed by the Magistrate Judge
or District Judge.

S.D. Ohio L.R. 72.4.
/s/ Terence P. Kemp
United States Magistrate Judge

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