Williams v. Corrections Corporation of America et al

Filing 17

OPINION AND ORDER by Judge Frank H. Seay denying 13 Motion to Vacate Order granting Plaintiff Leave to Proceed in forma pauperis. (Re: 6 Ruling on Motion to Proceed in Forma Pauperis) (adw, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF OKLAHOMA
MARIO WILLIAMS,
Plaintiff,
v.
CORRECTIONS CORPORATION
OF AMERICA, INC., et al.,
Defendants.

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No. CIV 14-157-FHS-SPS

OPINION AND ORDER
On May 1, 2014, the court granted plaintiff’s motion for leave to proceed in forma
pauperis and assessed an initial partial filing fee. (Dkt. 6). The defendants subsequently
filed a motion pursuant to Fed. R. Civ. P. 60 to reconsider and vacate the order, alleging
plaintiff has accrued at least three “strikes” under 28 U.S.C. § 1915(g). (Dkt. 13).1 Plaintiff
alleges in his response to the motion that he has been assessed only one strike from the
federal courts. (Dkt. 14). The defendants assert the following three cases should be
considered strikes against plaintiff:
Williams v. Sirmons, CIV-06-201-FHS-SPS (E.D. Okla. Feb. 26, 2008), aff’d, No. 087027, was dismissed in part on September 17, 2007, for plaintiff’s failure to exhaust the
administrative remedies for certain claims. On February 26, 2008, the remaining defendants
were dismissed for plaintiff’s failure to establish a constitutional violation or to demonstrate
personal participation by the defendants.
In Thomas v. Parker, 672 F.3d 1182, 1184-85 (10th Cir. 2012), the Tenth Circuit held
that the dismissal of a previous case filed by a prisoner should be considered a “strike” under
28 U.S.C. § 1915(g), when part of the claims were dismissed for failure to state a claim, and
the remaining claims were dismissed as unexhausted. Plaintiff concedes the dismissal of

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The defendants do not articulate which section of Fed. R. Civ. P 60 applies to their motion.

Case No. CIV-06-201-FHS-SPS is a strike.
Both Williams v. Franklin, No. CIV-06-460-JHP-SPS (E.D. Okla. Mar. 31, 2008),
aff’d, No. 08-7037 (10th Cir. Dec. 12, 2008), and Williams v. Corr. Corp. of Am., No. 09468-FHS-SPS (E.D. Okla. Aug 24, 2010), aff’d, No. 10-7068 (10th Cir. Jan. 12, 2011), were
dismissed pursuant to 42 U.S.C. § 1997e(a) for plaintiff’s failure to exhaust administrative
remedies. The defendants assert these two cases also are strikes.
In Thomas the Tenth Circuit also held that “[t]he congressional purpose of § 1915(g)
would be subverted if, by adding unexhausted claims to a complaint that otherwise does not
state a claim upon which relief may be granted, a prisoner could repeatedly escape imposition
of a strike and thus evade the bar imposed by the three-strikes rule.” Id. (quoting Pointer v.
Wilkinson, 502 F.3d 369, 374 (6th Cir. 2007)). Therefore, a strike is not imposed when a
case is dismissed for failure to exhaust administrative remedies.
Further, in Malek v. Reding, 195 Fed. Appx. 714, 2006 WL 2106811, at *2 (10th Cir.
2006) (unpublished), the Tenth Circuit held:
[T]he dismissal of a § 1983 complaint for failure to exhaust is not considered
a strike, since it is not a dismissal pursuant to § 1915(e)(2)(B). See Day v.
Maynard, 200 F.3d 665, 667 (10th Cir. 1999) (“[A] dismissal without
prejudice counts as a strike [only if] the dismissal is made because the action
is frivolous, malicious, or fails to state a claim.”).
Malek, at 195 Fed. Appx. at 716, 2006 WL 2106811, at *2.
After careful review, the court finds the defendants have failed to show they are
entitled to relief under Fed. R. Civ. P. 60. Plaintiff’s two dismissals without prejudice for
failure to exhaust administrative remedies pursuant to 42 U.S.C. § 1997e(a) did not constitute
strikes.
ACCORDINGLY, the defendants’ motion to vacate the order granting plaintiff leave
to proceed in forma pauperis (Dkt. 13) is DENIED.

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IT IS SO ORDERED this 30th day of March, 2015.

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