Taylor v. Bullard et al

Filing 24

REPORT AND RECOMMENDATION: It is respectfully RECOMMENDED that the motion for judgment on the pleadings 19 filed by Defendant Sebastian Bullard be DENIED. Signed by Magistrate Judge Barbara D. Holmes on 3/12/2025. (xc:Pro se party by regular mail. ) (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(kc)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF TENNESSEE
AT COLUMBIA
COREY TAYLOR

)
)
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v.
SEBASTIAN BULLARD
TO:

Case No. 1:24-cv-00052

Honorable Eli Richardson, United States District Judge

REPORT AND RECOMENDATION
This prisoner civil right action was referred to the Magistrate Judge for pretrial
proceedings. See Order entered July 29, 2024 (Docket Entry No. 8). Pending before the Court is
the motion for judgment on the pleadings (Docket Entry No. 19) filed by Defendant Sebastian
Bullard. Plaintiff opposes the motion. For the reasons set out below, the undersigned respectfully
recommends that the motion be DENIED.
I. BACKGROUND
Corey Taylor (“Plaintiff”) is an inmate of the Tennessee Department of Correction
(“TDOC”) currently confined at the Turney Center Industrial Complex (“Turney Center”) in
Only, Tennessee. He filed this lawsuit pro se and in forma pauperis on May 16, 2024, seeking
various forms of relief under 42 U.S.C. § 1983 for violations of his constitutional rights alleged
to have occurred at the Turney Center. See Complaint (Docket Entry No. 1). Upon initial
review of the complaint pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A, the Court found that
Plaintiff stated a colorable constitutional claim against a single Defendant, Sebastian Bullard,
based on Plaintiff’s allegations that Bullard had retaliated against Plaintiff because Plaintiff

pursued a prison grievance against Bullard. Bullard has filed an answer (Docket Entry No. 13)
to the complaint, and a scheduling order has been entered in the case (Docket Entry No. 18),
setting out deadlines for pretrial proceedings. A trial date has not been set in the case, pending
completion of the pretrial proceedings.
II. MOTION FOR JUDGMENT ON THE PLEADINGS AND REPONSE
Defendant Bullard requests that the Court dismiss this case without prejudice and tax
court costs to Plaintiff. See Memorandum in Support (Docket Entry No. 20) at 4. Although
styled as a motion for judgment on the pleadings, the sole basis for the motion is that the “three
strikes” provision of the Prison Litigation Reform Act (“PLRA”), 28 U.S.C. § 1915(g), applies to
Plaintiff’s lawsuit because Plaintiff had three prior cases that qualified as strikes at the time the
lawsuit was filed and because there were no allegations that he was under imminent danger of
serious physical injury. Id. at 1-4. Defendant Bullard argues that Plaintiff should therefore not
have been permitted to bring the lawsuit in forma pauperis and should have been required to pay
the full civil filing fee in order for the lawsuit to proceed. Id. Defendant Bullard points to the
following three federal lawsuits filed by Plaintiff that Bullard argues are “strikes” under Section
1915(g) because the lawsuits were dismissed for failure to state a claim upon which relief can be
granted:
1. Taylor, Corey D. v. Al White, et al., Case No. 1:17-cv-05632, N.D. Ill., dismissed for
failure to state a claim on October 6, 2017;
2. Taylor, Corey D. v. David L. Hoven, et al., Case No. 4:18-cv-00610-ACL, E.D.Mo.,
dismissed on May 8, 2018, for failure to state a claim; and,

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3. Taylor v. Franklin County Jail, et al., Case No. 4:18-cv-00600, E.D. Mo., dismissed on
May 8, 2018, for failure to state a claim. 1
Plaintiff responds in opposition to the motion, arguing that the “three strikes” provision
does not apply and that he has stated claims for relief that should proceed for further
development. See Response (Docket Entry No. 22).
III. LEGAL STANDARDS AND ANALYSIS
A. Section 1915(g)
The “three strikes” provision of the PLRA provides as follows:
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).
As succinctly explained by the Sixth Circuit Court of Appeals in Crump v. Blue,
[a]nyone who files a lawsuit in federal court presumptively must pay a filing fee.
See 28 U.S.C. § 1914(a). And anyone who cannot pay the fee may ask to proceed
“in forma pauperis,” a status that allows the litigant to pay the fee over time or
sometimes not at all. See id. § 1915(a)–(b). Under the Prison Litigation Reform
Act, prisoners may lose this privilege. They must pay the fee upfront if courts
have dismissed three or more of their prior “action[s] or appeal[s]” as “frivolous,
malicious, or [for] fail[ing] to state a claim.” Id. § 1915(g). Prisoners “under
imminent danger of serious physical injury” are exempt from this three-strikes
rule. Id.
121 F.4th, 1108, 1110 (6th Cir. 2024).

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Although Defendant Bullard asserts that he attaches to his motion three exhibits that
consist of the docket sheets and orders of dismissal for the three cases, see Docket Entry No. 20
at 1-2, no exhibits are attached to the motion.
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B. Merits of the Motion for Judgment on the Pleadings
The motion for judgment on the pleading filed by Defendant Bullard mirrors motions to
dismiss that have been filed in other lawsuits that Plaintiff currently has pending in this Court.
Indeed, the same “three strikes” argument that is raised in the instant motion was recently raised
in Taylor v. Byers, Case No. 3:22-cv-00689. See Motion to Dismiss in Case No 3:22-cv-00689
(Docket Entry Nos. 94 and 95). Both motions rely upon the same three cases that were filed by
Plaintiff, which were dismissed.
The “three strikes” argument and the motion to dismiss filed in Taylor v. Byers was
recently denied by the Honorable William L. Campbell, Jr. See Orders entered in Case No. 3:22cv-00689 on January 27, 2025 (Docket Entry No. 107), and January 29, 2025 (Docket Entry No.
110). Judge Campbell specifically addressed and rejected the argument that Taylor v. White, No.
1:17-cv-05632 (N.D. Ill. 2017), qualifies as a “strike” under Section 1915(g), stating:
The dismissal of a prisoner’s civil lawsuit for failure to state a claim counts as a
strike under the PLRA’s three-strikes rule “regardless of the decision's prejudicial
effect." Lomax v. OrtizMarquez, 140 S. Ct. 1721, 1724-25 (2020). However,
Section 1915(g) “does not apply when a court gives a plaintiff leave to amend his
complaint[.]” Id. at 1724 n.4. It also does not apply when a court dismisses an
action in part on the immunity of a defendant. Crump v. Blue, 121 F.4th 1108,
1110-14 (6th Cir. 2024) (holding Eleventh Amendment immunity dismissal “does
not by its terms count as a frivolous or malicious action” nor does it count as a
failure to state a claim.).
In Taylor v. White, the district court determined one of the defendants (the
Chairperson of the Illinois Prisoner Review Board) was entitled to quasi-judicial
immunity from Taylor’s suit for damages and that the complaint failed to state a
claim against the two other defendants. (Doc. No. 94-1 at PageID # 381-85; see
also Doc. No. 5 in case no. 1:17-cv-05632 (N.D. Ill. 2017)). The district court
dismissed the complaint without prejudice and granted Taylor leave to file an
amended complaint. (See id.). The court did not make any finding that Taylor
frivolously or maliciously ignored an immunity defense. (See id.). After Taylor
failed to submit an amended complaint in accordance with the court’s
instructions, the court terminated the case under Federal Rule of Civil Procedure
41(b). (Id.).
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Because the district court in White v. Taylor dismissed the complaint in part on
the immunity of a defendant and granted Taylor leave to file an amended
complaint, that dismissal does not count as a strike. Crump v. Blue, 121 F.4th
1108, 1110-14 (6th Cir. 2024); Lomax v. OrtizMarquez, 140 S. Ct. 1721, 1724 n.4
(2020).
See January 29, 2025, Order in Case No. 3:22-cv-00689 (Docket Entry No. 110) at 2.
While the determination and rejection of the “three strikes” dismissal argument in Taylor
v. Byers is not binding in the instant case, there is no apparent reason why the analysis and
conclusion reached in Taylor v. Byers should not apply as equally here. Because the prior
dismissal of Taylor v. White does not qualify a strike under Section 1915(g), the foundation for
Defendant Bullard’s dismissal argument crumbles because Bullard cannot show that Plaintiff had
three prior cases that qualified as strikes at the time the instant case was permitted to proceed in
forma pauperis. 2
RECOMMENDATION
Based on the foregoing, it is respectfully RECOMMENDED that the motion for
judgment on the pleadings (Docket Entry No. 19) filed by Defendant Sebastian Bullard be
DENIED.
ANY OBJECTIONS to this Report and Recommendation must be filed within fourteen
(14) days of service of this Report and Recommendation and must state with particularity the
specific portions of this Report and Recommendation to which objection is made. See Fed. R.
Civ. P. 72(b)(2) and Local Rule 72.02(a). Failure to file written objections within the specified
2 The Court notes that, in another of Plaintiff’s pending lawsuits in this Court, Taylor v.
Brun et al, Case No. 1:23-cv-00087, the Court has recently addressed a motion to dismiss that
raised the same three strikes argument that is raised in the instant motion and has likewise
recommended that the motion be denied. See Report and Recommendation entered March 3,
2025 (Docket Entry No. 27) in Taylor v. Brun et al.
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time can be deemed a waiver of the right to appeal the District Court's Order regarding the
Report and Recommendation. See Thomas v. Arn, 474 U.S. 140 (1985); United States v. Walters,
638 F.2d 947 (6th Cir. 1981). Any response to the objections must be filed within fourteen (14)
days after service of objections. See Fed. R. Civ. P. 72(b)(2) and Local Rule 72.02(b).
Respectfully submitted,

________________________
BARBARA D. HOLMES
United States Magistrate Judge

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