Harris v. Croft et al

Filing 25

ORDER adopting 18 the Report and Recommendation; granting 7 Defendants' Motion to Revoke Plaintiff's in forma pauperis status; denying 21 and 24 Plaintiffs' Motions for Leave to File Addenda. Signed by Judge Michael H. Watson on 3/1/13. (jk1)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION

Dwayne Harris,
Plaintiff

v.

Civil Action 2:12-cv-405
Judge Watson
Magistrate Judge Abel

Gary Croft, eta/.,
Defendants

ORDER
Plaintiff Dwayne Harris, a state prisoner, brings this action alleging that
defendants retaliated against him for exercising his constitutionally protected right
to file inmate grievances. This matter is before the Court on Plaintitrs July 26,
2012 objections to Magistrate Judge Abel's July 13, 2012 Report and
Recommendation that Plaintitrs in forma pauperis status be revoked and that he
be compelled to make im~ediate payment of the full filing fee.

Plaintiff's Objections. Plaintiff argues that the Magistrate Judge erred by
counting his appeal in Harris v. Moore as a second strike. Plaintiff maintains that
the language of 28 U.S.C. § 1915(g) uses the term "action" in the same manner
as it is used by the Federal Rules of Civil Procedure. He maintains that a case is
not counted as a strike until the entire case is final and a prisoner has exhausted
or waived his opportunity to appeal. He further argues that if an appellate court
affirms a dismissal by the lower court, then it still only counts as a single strike.
Plaintiff also argues that Harris v. Hageman should not be counted as a strike

because this case is still pending in the Sixth Circuit Court of Appeals, and a
district court's dismissal does not count as a strike until the after the litigant has
exhausted his appeal.
Plaintiff also seeks reconsideration of the Magistrate Judge's denial of his
motion for a protection order. Plaintiff maintains that defendants have threatened
and harassed him for filing this lawsuit. Plaintiff says he fears for his life. He
states that defendants said they would kill him and make it look as if he killed
himself.

Discussion. Under the provisions of 28 U.S.C. § 1915(g) a prisoner who
"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," cannot proceed in forma pauperis "unless the prisoner is under
imminent danger of serious physical injury."
Plaintiff concedes that Dwayne Harris v. Ernie Moore, et a/., Case No.
1:04-cv-796 and Dwayne Harris v. Olivia Karl, eta/., Case No. 2:05-cv-1133
were dismissed for failure to state a claim and count as two strikes, but he argues
that Dwayne Harris v. Harry Hageman, eta/., Case No. 2:11-cv-728 should not
count as a strike because, although it was dismissed for failure to state a claim,
his appeal of that decision is still pending. The Magistrate Judge properly rejected
this argument because the statute does not exempt complaints dismissed on
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initial screening because an appeal is pending. Moreover, § 1915(g) provides
that a prisoner who "has, on 3 or more prior occasions ... brought an ... appeal
in a court of the United States that was dismissed on the grounds that it ... fails
to state a claim upon which relief may be granted" cannot proceed in forma
pauperis ." The Magistrate Judge also correctly concluded that even if
2:11-cv-728 were not counted as a strike, Plaintiff Harris's appeal of
1:04-cv-796 counts as a strike because the Court of Appeals affirmed the district
court's ruling that the complaint failed to state a claim for relief. Plaintiff's
argument that a dismissal by the trial court that is affirmed on appeal only counts
as one strike is without merit. A frivolous appeal of a lower court's dismissal
results in two strikes against the inmate under the plain language of§ 1915(g).
The Magistrate Judge also properly denied Plaintiff's July 11, 2012 motion
for a protection order (ECF No. 17). The facts supporting the motion arose after
this lawsuit was filed, and Plaintiff's allegations concern individuals who are not
parties to this case. Plaintiff's allegations are therefore not properly before this
Court.
Upon de novo review in accordance with the provisions of 28 U.S.C.
§636(b )( 1)(B), the Court ADOPTS the Report and Recommendation and
GRANTS Defendants' May 24, 2012 motion to revoke plaintiff's in forma pauperis

status. ECF No.7. In addition, Plaintiffs motions for leave to file addenda, ECF
Nos. 21 and 21{, are, as Defendants suggest, both untimely, seek to raise
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arguments not previously presented to the Magistrate Judge, and lack merit.
They are therefore DENIED.
Plaintiff Dwayne Harris is ORDERED to pay the Court's $350 filing fee, less
the $11.44 he has already paid, Docket Notation June 25, 2012, within thirty
(30} days of the date of this Order. See, In re Jacta Est Alea, 286 F .3d 378,
381 (6th Cir. 2002).
The Clerk shall remove ECF Nos. 18, 19, 21, and 2'1 from the Civil Justice
Reform Act motions report.

IT IS SO ORDERED.

M~S£~

United States District Court

2: 12-cv-405

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