Pilcher v. U.S. Federal Court, Greenville, MS et al

Filing 26

ORDER denying 24 Motion to withdraw strikes ; denying 25 Motion for Reconsideration. Signed by Chief Judge Barbara B. Crabb on 9/14/09. (elc),(ps)

IN THE UNITED STATES DISTRICT COURT FO R THE WESTERN DISTRICT OF WISCONSIN --------------------------------------------O R L AN D O LEWAYNE PILCHER, ORDER Plaintiff, 0 9 -c v -3 3 6 -s lc v. U .S . FEDERAL COURT, GREENVILLE, MS, A L L EN PEPPER JR. & ADMINISTRATION, R IC K Y BANKS, Town Sheriff, D E W A YN E SMITH, STEPHEN NICKS an d DAVID SANDERS, D efendan ts. --------------------------------------------O R L AN D O LEWAYNE PILCHER, P la i n t i f f , v. M S . HOLINKA, MS. FEATHERS, M R . TRATE, MR. MARTIN, an d MR. RUSSELL, D efendan ts. --------------------------------------------These two cases were dismissed in separate orders in August 2009. I dismissed case ORDER 0 9 -c v -4 9 0 -s lc

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no . 09-cv-336-slc because some of the claims were challenges to the validity of plaintiff's conviction and the remaining claims were related to alleged harm to individuals other than plaintiff. I dismissed case no. 09-cv-490-slc because it was clear from the face of the com plaint that plaintiff had not exhausted his administrative remedies as he was required to do under 42 U.S.C. § 1997e(a). In accordance with 28 U.S.C. § 1915(g), I recorded two strikes against plaintiff. N o w plaintiff has filed a document that he calls "Filing objection & asking for reco n sid eratio n on Order/Civil Case No. 09-336-slc on Order dated 18th and 21st day of A ugu st, 2009" and another document he calls "Inquire/Response to Order/Civil Case no. 09cv-336 -slc dated 17th day of August, 2009 and Judgment dated 18th day of August, 2009." In the first document, plaintiff asks the court "to withdraw both strikes." Although

p la in ti ff 's reason for the request is not clear, he seems to be rearguing the merits of his c la i m s . The second document is even more difficult to understand, but it seems to be a m otion to reconsider the dismissal of case no. 09-cv-336-slc because his conviction is invalid. B oth of plaintiff's motions will be denied. The law required dismissal of both of his cases because challenges to a conviction may not be pursued through a civil action and ch allen ges to prison conditions may not be brought until the prisoner exhausts his available adm inistrative remedies. These rules cannot be disregarded, even if the plaintiff believes his claim s have merit. Similarly, a court does not have discretion to disregard § 1915(g).

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W hether or not a particular court explicitly records a strike, § 1915(g) prohibits a prisoner from proceeding in forma pauperis if the prisoner has "on 3 or more prior occasions" brought an action that was dismissed for failure to state a claim upon which relief may be granted (T he only exception is that a prisoner who has "struck out" may proceed in forma pauperis if he is in "imminent danger of serious physical injury.") As the Supreme Court explained in Jones v. Bock, 549 U.S. 199, 214-16 (2007), a complaint fails to state a claim upon which relief may be granted any time "the allegations, taken as true, show the plaintiff is not entitled to relief," including times when the complaint shows that a prisoner failed to comply w ith exhaustion requirements. Id. at 215-16. Because I concluded in both of these cases that plaintiff could not prevail on his claims, I dismissed them for failure to state a claim. T his means that both cases must count as "strikes" under § 1915(g).

OR DER IT IS ORDERED that plaintiff Orlando Pilcher's motion for reconsideration in case n o . 09-cv-336-slc, dkt. #25, and his motions to "withdraw" the strikes assessed in case no.

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09-cv-336-slc, dkt. #24, and case no. 09-cv-490-slc, dkt. #8, are DENIED. E n tered this 14 t h day of September, 2009. B Y THE COURT: /s/ _ _ _ __ _ _ __ _ _ __ _ _ __ _ _ __ _ _ __ _ _ __ _ _ __ _ B AR B AR A B. CRABB D istrict Judge

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