Ball v. Cooper et al

Filing 56

ORDER - IT IS HEREBY ORDERED that the R&R is ADOPTED and Dft's 19 Motion is DENIED. Pltf is placed on notice that if any of her pending suits are dismissed for failure to state a claim upon which releif may be granted that such a dismissal would constitute a 'third strike'. This matter shall be referred back to Magistrate Judge Martin C. Carlson. 47 Signed by Chief Judge Yvette Kane on March 15, 2012. (sc)

UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
DAWN MARIE BALL,
Plaintiff
v.
COOPER, et al.,
Defendants

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Civil No. 1:11-CV-1833
(Chief Judge Kane)
(Magistrate Judge Carlson)

ORDER
THE BACKGROUND OF THIS ORDER IS AS FOLLOWS:
On December 7, 2011, Defendants filed a motion to revoke Plaintiff Dawn Marie Ball’s
in forma pauperis status on the ground that she has had three cases dismissed “on the grounds
that it is frivolous, malicious, or fails to state a claim upon which relief may be granted.” See 28
U.S.C. § 1915(g). On January 30, 2012, Magistrate Judge Carlson issued a Report and
Recommendation in which he recommended that the motion be denied, but that Plaintiff be
placed on notice that at the time of the filing of her complaint in the above captioned action she
had two prior suits dismissed on the grounds that they were frivolous, malicious, or failed to
state a claim upon which relief may be granted. (Doc. No. 47.) On March 5, 2012, Plaintiff filed
an objection arguing that she did not have “two strikes” as that term is understood in the context
of 28 U.S.C. § 1915(g). (Doc. No. 53.) Upon a de novo review of the motion and Plaintiff’s
litigation history, the Court agrees with Magistrate Judge Carlson, that Plaintiff has had two
prior suits dismissed on the grounds that they were frivolous, malicious, or failed to state a claim
upon which relief may be granted.
ACCORDINGLY, on this 15th day of March 2012, IT IS HEREBY ORDERED
THAT the Report and Recommendation (Doc. No. 47) is ADOPTED and Defendant’s motion
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(Doc. No. 19) is DENIED. Plaintiff is placed on notice that if any of her pending suits are
dismissed for failure to state a claim upon which relief may be granted that such a dismissal
would constitute a “third strike” for purposes of 28 U.S.C. § 1915(g), which would severely
inhibit her ability to proceed in forma pauperis in the future.1 This matter shall be referred back
to Magistrate Judge Carlson for further pre-trial management.

S/ Yvette Kane
Yvette Kane, Chief Judge
United States District Court
Middle District of Pennsylvania

1

Plaintiff may avoid this outcome by moving for voluntary dismissal of any pending
claim she fears is in danger of dismissal on the grounds that is frivolous, malicious, or fails to
state a claim. See Tolbert v. Stevenson, 635 F.3d 646 (4th Cir. 2011).
2