Gabel v. Hudson et al

Filing 16

REPORT AND RECOMMENDATION in that it is RECOMMENDED that the 10 MOTION to Vacate 5 Order on Motion for Leave to Proceed in forma pauperis filed by Stuart Hudson and Miles Finney be GRANTED. Objections to R&R due by 1/2/2015. Signed by Magistrate Judge Norah McCann King on 12/16/14. (sem1)(This document has been sent by the Clerks Office by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION

KERMIT GABEL,
Plaintiff,
Civil Action 2:14-cv-1057
Judge Smith
Magistrate Judge King

vs.
STUART HUDSON, et al.,
Defendants.

REPORT AND RECOMMENDATION
Plaintiff, a state inmate proceeding without the assistance of
counsel, brings this civil rights action under 42 U.S.C. § 1983,
claiming that he has been denied medical or dental care in violation
of his rights under the Eighth and Fourteenth Amendments to the United
States Constitution.

This matter is before the Court on Defendants’

Motion to Vacate Order Granting Plaintiff’s Motion for Leave to
Proceed In Formal Pauperis (Doc. 5), ECF 10 (“Motion to Vacate”).

For

the reasons that follow, it is RECOMMENDED that the Motion to Vacate
be granted and that plaintiff be required to pay the remaining $50.00
of the full $400.00 filing fee within fourteen (14) days.
Plaintiff instituted this action after the Court granted him
leave to proceed in forma pauperis on August 18, 2014.

1

Order, ECF 5.1

The Court notes that, in the application for leave to proceed in forma
pauperis, plaintiff identified one case, Gabel v. Bunting, 3:11-cv-2404, in
response to the question: “Have you on three or more prior occasions, while
incarcerated or detained in any prison, jail or other facility, brought an
action in a court of the United States that was dismissed on the grounds that
it was frivolous, malicious, or failed to state a claim upon which relief may
be granted?” Application and Affidavit by Incarcerated Person to Proceed
Without Prepayment of Fees, ECF 4, PAGEID#:18.

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Defendants now move to vacate that Order, arguing that plaintiff has
filed numerous lawsuits in federal court over multiple years and
contending that “at least three” of those actions or appeals “were
dismissed as frivolous or for failure to state a claim upon which
relief may be granted.”

Motion to Vacate, pp. 3-4.

Defendants

therefore argue that the “three strikes” provision of the Prison
Litigation Reform Act (“PLRA”), 28 U.S.C. § 1915(g), requires that
leave to proceed in forma pauperis be revoked and that plaintiff be
required to pay the full $400.00 filing fee.

Id. at 3-5.

Plaintiff

opposes the Motion to Vacate, see ECF 13, and this matter is ripe for
resolution with the filing of defendants’ reply memorandum, ECF 15.
“The ability to bring lawsuits without payment of the statutory
filing fee is a privilege, not a right.”

Jackson v. Bell, No. 1:10-

cv-1255, 2010 WL 5343747, at *2 (W.D. Mich. Dec. 21, 2010).

The

provision of the PLRA that governs in forma pauperis status, i.e., the
“three strikes” provision, 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.
28 U.S.C. § 1915(g).

See also Wilson v. Yaklich, 148 F.3d 596, 602,

604 (6th Cir. 1998) (noting that the PLRA was signed into law in 1996
and stating that Congress enacted the “three strikes” provision “[i]n
an effort to lessen the crush of such [frivolous prisoner] filings on
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the courts”).

The “three strikes” provision applies even to cases

that were dismissed prior to the effective date of the PLRA.

See,

e.g., Wilson, 148 F.3d at 604 (“[W]e thus hold that dismissals of
previous actions entered prior to the effective date of the PLRA may
be counted toward the ‘three strikes’ referred to in 28 U.S.C. §
1915(g)”).

In addition, “[t]he plain language [of Section 1915(g)]

seemingly limits the application of a strike to dismissals by only
speaking of dismissals.”

Taylor v. First Med. Mgmt., No. 10-6411, 508

F. App’x 488, at *494 (6th Cir. Dec. 14, 2012).

Therefore, the

affirmance on appeal of a trial court’s dismissal of a case does not
alone count as a “strike;” instead, the dismissal of an appeal as
frivolous, malicious or for failure to state a claim upon which relief
may be granted properly counts as a “strike.”

Id. (“The other

circuits presented with the question of whether an affirmance can
count as a strike have held that a court should not impose a § 1915(g)
strike for an appeal when the original appellate court declined to
implicate § 1915(g) reasons.”).

Finally, if the privilege of

proceeding in forma pauperis is abused, a court may revoke this
status.

See, e.g., In re McDonald, 489 U.S. 180, 184 (1989); Reneer

v. Sewell, 975 F.2d 258, 260-61 (6th Cir. 1992).
In the case presently before the Court, defendants argue that
plaintiff has at least three “strikes” because two cases filed by him
in other district courts were dismissed for failure to state a claim
upon which relief can be granted and one of those decisions was
affirmed in an appeal that was itself characterized as frivolous.
3

Motion to Vacate, pp. 3-5 (citing Affidavit of Linda Hill, ¶¶ 6(A),
6(B), 6(E), attached to Motion to Vacate (“Hill Affidavit”);
Attachments 2, 3 and 6, to the Hill Affidavit).

More specifically,

defendants first cite to Gabel v. Estelle, No. H-81-3125, 677 F. Supp.
514 (S.D. Tex. Mar. 23, 1987) (Hughes, J.), in which that court
dismissed the action with prejudice for failure to state a claim upon
which relief can be granted.
2, PAGEID#:44.

See Hill Affidavit, ¶ 6(A); Attachment

On appeal, the United States Court of Appeals for the

Fifth Circuit in Gabel v. Lynbaugh, No. 872353, 835 F.2d 124 (5th Cir.
Jan. 8, 1988) “agree[d] with the trial court’s conclusion [in Gabel v.
Estelle] that the action is frivolous and subject to dismissal
pursuant to 28 U.S.C. § 1915(d).”
3, PAGID#:45.

Hill Affidavit, ¶ 6(B); Attachment

The Fifth Circuit further concluded that “the briefing

of this meritless and frivolous appeal renders the pro se appellants
subject to [] sanctions” and that “[w]e do not sit as a means by which
the system can be punished – or to be punished ourselves – by the
pursuit of frivolous or malicious appeals by disgruntled state
prisoners.”

Attachment 3, PAGEID#:45.

See also id. at PAGEID#:46

(requiring each appellant to pay monetary sanctions to appellees in
the form of $10.00 for court costs incurred in the action).

Finally,

defendants contend that Gabel v. Bunting, No. 3:11-cv-2404, Order, ECF
5 (N.D. Ohio Jan. 5, 2012) (Carr, J.), counts as a third strike
because the District Court in that case dismissed the action pursuant
to 28 U.S.C. § 1915(e) and certified pursuant to 28 U.S.C. §
1915(a)(3) that an appeal could not be taken in good faith.
4

Hill

Affidavit, ¶ 6(E); Attachment 6, PAGEID#:53.
Plaintiff concedes that Gabel v. Bunting, No. 3:11-cv-2404,
Order, ECF 5 (N.D. Ohio Jan. 5, 2012) (Carr, J.), counts as a strike.
ECF 13, pp. 2-3.

However, plaintiff contends, inter alia, that the

other decisions, namely, Gabel v. Estelle, No. H-81-3125, 677 F. Supp.
514 (S.D. Tex. Mar. 23, 1987) (Hughes, J.), aff’d Gabel v. Lynbaugh,
No. 872353, 835 F.2d 124 (5th Cir. Jan. 8, 1988), do not count as
strikes because those cases were decided prior to the enactment of the
PLRA.

ECF 13, p. 2.

Plaintiff’s argument is not well-taken.

As

discussed supra, it is well-established that the “three strikes”
provision applies to cases that were dismissed prior to the effective
date of the PLRA.

Wilson, 148 F.3d at 604.

As set forth above, Gabel

v. Estelle, No. H-81-3125, 677 F. Supp. 514 (S.D. Tex. Mar. 23, 1987)
(Hughes, J.), aff’d Gabel v. Lynbaugh, No. 872353, 835 F.2d 124 (5th
Cir. Jan. 8, 1988), count as plaintiff’s second and third strikes
under 28 U.S.C. § 1915(g) because the actions were dismissed as
frivolous.
Plaintiff also contends that defendants waived their right to
assert the “three strikes” argument because they did not raise it in
Gabel v. Hudson, No. 2:12-cv-597 (S.D. Ohio).

ECF 13, PAGEID#:100,

PAGID#:102 (contending that the present action is “essentially a
continuation of case #2:12-CV-597”).

This Court again disagrees.

The

“three strikes” provision is not an affirmative defense that must be
raised by a defendant; a court may sua sponte dismiss an action
pursuant to 28 U.S.C. § 1915(g) once the court becomes aware of the
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facts.

See, e.g., Witzke v. Hiller, 966 F. Supp. 538, 539-40 (E.D.

Mich. 1997)(sua sponte dismissing action under 28 U.S.C. § 1915(g));
Bowker v. United States, 4:04 CV 2522, 2006 WL 2990519, at *3 (N.D.
Ohio Oct. 18, 2006) (“This ‘three strikes’ provision of the [PLRA] is
not an affirmative defense.

It may be raised by a federal court sua

sponte.”) (internal citation omitted).

See also Harris v. City of New

York, 607 F.3d 18, 23 (2d Cir. 2010) (“[T]he three strikes rule is not
an affirmative defense that must be raised in the pleadings.

Other

courts have reached the conclusion that district courts may apply the
three strikes rule sua sponte.”).
This Court finds that plaintiff has brought, on three or more
prior occasions, while incarcerated, an action that was dismissed on
the ground that it failed to state a claim upon which relief may be
granted or was frivolous.

Therefore, at the time that plaintiff

sought leave to proceed in forma pauperis in this action, he had three
“strikes”, as defined by the PLRA, against him.

Because the

Complaint, ECF 1, alleges nothing that would fall within the “imminent
danger of serious physical injury” exception to the “three strikes”
provision, 28 U.S.C. § 1915(g), the Court concludes that the PLRA
prohibits the grant of in forma pauperis status to plaintiff in this
action.2
WHEREUPON, it is RECOMMENDED that Defendants’ Motion to Vacate
Order Granting Plaintiff’s Motion for Leave to Proceed In Formal
Pauperis (Doc. 5), ECF 10, be GRANTED and that plaintiff be ordered to
2
Having so concluded, the Court does not address the other actions filed by
plaintiff, including habeas cases, discussed by the parties.

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pay, within fourteen (14) days, the full $400.00 filing fee.3
If any party seeks review by the District Judge of this Report
and Recommendation, that party may, within fourteen (14) days, file
and serve on all parties objections to the Report and Recommendation,
specifically designating this Report and Recommendation, and the part
thereof in question, as well as the basis for objection thereto.
U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b).

28

Response to objections

must be filed within fourteen (14) days after being served with a copy
thereof.

Fed. R. Civ. P. 72(b).

The parties are specifically advised that failure to object to
the Report and Recommendation will result in a waiver of the right to
de novo review by the District Judge and of the right to appeal the
decision of the District Court adopting the Report and Recommendation.
See Thomas v. Arn, 474 U.S. 140 (1985); Smith v. Detroit Fed’n of
Teachers, Local 231 etc., 829 F.2d 1370 (6th Cir. 1987); United States
v. Walters, 638 F.2d 947 (6th Cir. 1981).

December 16, 2014

s/Norah McCann King
Norah McCann King
United States Magistrate Judge

3

As noted supra, the docket reflects partial filing fee payments in the
amount of $4.00 on September 22, 2014, and in the amount of $346.00 on
November 18, 2014, leaving $50.00 unpaid. Cf. Bussie v. House Oversight
Comm., No. 1:14cv32, 2014 U.S. Dist. LEXIS 35984 (S.D. Ohio Mar. 19, 2014).

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