United States District Court, D. Kansas
WILLIAM R. HOLT, Plaintiff,
JOE NORWOOD, et al., Defendants.
CROW U.S. Senior District Judge.
filed this pro se civil rights complaint pursuant to
42 U.S.C. § 1983. On May 15, 2019, this matter was
dismissed without prejudice under Fed.R.Civ.P. 41(b). (Docs.
46, 47.) On November 25, 2019, the Court granted
Plaintiff's request to reopen this case. (Doc. 54.)
Defendants have filed a Motion to Reconsider (Doc. 61) the
Court's order reopening this case. Plaintiff has filed a
response to the motion to reconsider, as well as a Motion for
Additions to the Record, Renewed Motion to Appoint Counsel,
Motion for Discovery, and Motion for Extension of Time (Docs.
62, 63). In their Motion to Reconsider, Defendants argue that
Plaintiff's five-month delay in challenging the dismissal
was unreasonable; Plaintiff did not establish any just ground
for relief from the judgment as required by Fed.R.Civ.P.
60(b); and that Plaintiff is proceeding in forma
pauperis in violation of the three strikes rule.
Court's Memorandum and Order entered on December 21,
2018, the Court provisionally granted Plaintiff's motion
to proceed in forma pauperis, subject to Plaintiff
providing the financial information as directed in the
Court's Notice of Deficiency. (Doc. 13, at 3.) Plaintiff
provided his financial information on January 3, 2019. (Doc.
the Court reopened this case, Plaintiff filed a notice of
appeal and sought permission to proceed in forma
pauperis on appeal. The Tenth Circuit issued an order
finding that Plaintiff is subject to the statutory
requirement that he prepay the appellate filing fees, stating
Before filing this appeal, Mr. Holt filed three or more civil
actions or appeals, while incarcerated, each of which was
dismissed on the grounds that it was frivolous, malicious, or
failed to state a claim on which relief could be granted:
(1) Holt v. Patty, No.
17-3149-SAC (D. Kan. Oct. 31, 2017) (dismissing prisoner
§ 1983 complaint for failure to state a claim),
appeal dismissed for lack of prosecution, No.
17-3243 (10th Cir.); (2) Holt
v. Werholtz, No. 05-3205-SAC (D. Kan. June 14, 2005)
(dismissing prisoner § 1983 complaint for failure to
state a claim), (3) appeal
dismissed as frivolous, No. 05-3260 (assessing another
PLRA strike). See Hafed v. Fed. Bureau of Prisons,
635 F.3d 1172 (10th Cir. 2011); Jennings v. Natrona Cty.
Det. Ctr. Med. Facil., 175 F.3d 775, 780 (10th Cir.
Holt v. Norwood, No. 19-3259, Doc. 010110267883, at
p.3 (10th Cir. Nov. 29, 2019). In the instant case before
this Court, Plaintiff listed his 2017 case, but not his 2005
case, in response to the question on his form complaint
asking if Plaintiff had begun other lawsuits “dealing
with the same facts involved in this action or otherwise
relating to the conditions of your imprisonment?” (Doc.
1, at 7.)
three strikes set forth in the Tenth Circuit's order were
assessed prior to Plaintiff filing this case on November 16,
2018. Therefore, Plaintiff is subject to the
“three-strikes” provision under 28 U.S.C. §
1915(g). Court records fully establish that Plaintiff
“has, on 3 or more prior occasions, while incarcerated
. . ., 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.” Accordingly, he may proceed
in forma pauperis only if he establishes a threat of
imminent danger of serious physical injury. Id. The
Complaint presents no claim that Plaintiff was in danger of
serious physical injury at the time of filing.
Court can raise the three strikes issue sua sponte.
The Second Circuit in Harris v. City of New York, in
affirming the district court's dismissal of
plaintiff's suit on the grounds that he was in violation
of the PLRA's three strikes rule, found that:
Harris argues that even if § 1915(g) can be applied once
a prisoner has been released, the three strikes rule is an
affirmative defense that must be raised in the pleadings, and
the defendants waived this defense by failing to bring
Harris's multiple meritless suits to the district
court's attention until almost two months after filing
their answer to Harris's amended complaint. As an initial
matter, we note that Harris's “Prisoner
Complaint” forms misrepresented how many strike suits
he had filed prior to bringing the instant action. Harris
should not benefit from his own misleading submissions, and
as an equitable matter, he may have waived this argument. But
we need not determine whether waiver applies because we
conclude that the 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. See Thompson v. Drug
Enforcement Admin., 492 F.3d 428, 435-36 (D.C. Cir.
2007) (“[E]vidence showing the grounds for prior
dismissals . . . must be produced either by the defendant
challenging the prisoner's IFP status or, when readily
available, by the court itself.”); Andrews v.
King, 398 F.3d 1113, 1120 (9th Cir. 2005) (stating that
a prisoner can be “placed on notice of the potential
disqualification under § 1915(g) by either the district
court or the defendant”). This conclusion makes sense.
First, in addition to initial actions in the district court,
the three strikes rule applies to appeals, where there are no
pleadings, and so it is unlikely that Congress intended to
require that it be raised as an affirmative defense.
Moreover, although one of the PLRA's goals was protection
of the corrections system, see Ruggiero v. County of
Orange, 467 F.3d 170, 174 (2d Cir. 2006), an equally
compelling purpose of the statute was to give district courts
greater power to protect their dockets from meritless
lawsuits, see Ortiz v. McBride, 380 F.3d 649, 658
(2d Cir.2004) (“[T]he purpose of the PLRA . . . was
plainly to curtail what Congress perceived to be inmate
abuses of the judicial process.”); 141 Cong. Rec.
S14408-01, *S14418 (daily ed. Sept. 27, 1995) (statement of
Sen. Hatch) (“[The PLRA] will help bring relief to a
civil justice system overburdened by frivolous prisoner
lawsuits.”). To hold that the three strikes rule is
waived unless raised by the defendant in the pleadings would
strip the district courts of their ability to dismiss
meritless suits. Indeed, in his reply brief to this Court
Harris concedes that a district court “retains the
discretion to resolve” the question of whether the
plaintiff already has three strikes against him,
“even if not raised by the parties.”
Reply Br. at 15 (emphasis added). We agree, and find that a
district court can invoke § 1915(g) to dismiss a
prisoner lawsuit even if the three strikes rule has not
be[en] raised by the defendant in the pleadings.
Harris v . City of New York, 607 F.3d 18, 22-23 (2nd
Cir. 2010); see also Strope v. Cummings, 653 F.3d
1271, 1273 (10th Cir. 2011) (“And although §
1915(g) is not jurisdictional . . ., we may raise the issue
of strikes sua sponte.”) (citations omitted).
the Court is now aware that Plaintiff is proceeding in
violation of the PLRA, the Court will vacate the portion of
its December 21, 2018 Memorandum and Order (Doc. 13) granting
Plaintiff leave to proceed in forma pauperis.
See Benavides v. Federal Bureau of Prisons, No.
10-0062 (RWR), 2010 WL 2574104 (D.C. Cir. June 18, 2010)
(vacating order granting in forma pauperis and
revoking plaintiff's in forma pauperis status);
Prophet v. Clark, No. 1-08-00982-FJM, 2019 WL
1765197, at *1 (E.D. Cal. June 22, 2009) (revoking order
granting leave to proceed in forma pauperis);
Rambert v. Johnson, No. 16-72 Erie, 2016 WL 6573855
(W.D. Pa. Nov. 7, 2016) (vacating order granting in forma
pauperis status); Davis v. Eslinger, No.
6:07-cv-887-Orl-31DAB, 2007 WL 2714103, at *1 (M.D. Fla.
Sept. 17, 2007) (vacating order granting leave to proceed
in forma pauperis where court was unaware of the
prior strikes when granting the motion); Gilbert v.
Mitchell, No. 08-CV-816, 2008 WL 4780348, at *1 (E.D.
Wis. Oct. 31, 2008) (finding that court was obliged to vacate
its order granting motion for leave to proceed in forma
pauperis where it came to the court's attention that
plaintiff failed to disclose that he had accumulated three
strikes); Rambert v. Johnson, CA. NO. 16-72 Erie,
2016 WL 4921089, at *2 (W.D. Pa. Sept. 15, 2016) (“In
circumstances where a prisoner was improperly granted in
forma pauperis status even though he has three strikes
against him ‘the proper remedy is to vacate the order
granting IFP status,' require plaintiff to pay the filing
fee, and if he fails to do so, ‘dismiss the case with
prejudice for failure to prosecute.”); Martin v.
Wallis, No. 1:07-cv-175, 2008 WL 3471864, at *6 (D. Vt.
Aug. 12, 2008) (adopting recommendation to vacate in
forma pauperis order and grant plaintiff 30 days to pay
the filing fee); Martin v. Zariwala, No.
2:18-cv-270, 2019 WL 1449738, at *2 (S.D. Ohio April 2,
2019), adopted by 2019 WL 1876874 (S.D. Ohio Apr.
26, 2019) and 2019 WL 3082983 (S.D. Ohio July 15, 2019)
(“A court may revoke in forma pauperis status
if the privilege of proceeding in this status is abused and
require that the plaintiff pay the full fee.”) (citing
In re McDonald, 489 U.S. 180, 184 (1989); Reneer
v. Sewell, 975 F.2d 258, 260-61 (6th Cir. 1992);
Gabel v. Hudson, No. 2:14-cv-1057, 2014 WL 7183940,
at *1 (S.D. Ohio Dec. 16, 2014) (recommending that motion to
vacate order granting in forma pauperis status be
granted and that in forma pauperis status be revoked
where plaintiff prisoner had accumulated three strikes),
adopted by 2015 WL 224975 (S.D. Ohio Jan. 15, 2015)
(requiring the plaintiff to pay the fee and warning that
failure to do so may result in dismissal of the action for
want of prosecution); Armstrong v. Brunsman, No.
1:12-cv-00132, 2012 WL 6057578, at *1 (S.D. Ohio Dec. 6,
2012) (denying motion to proceed in forma pauperis,
requiring prisoner plaintiff to pay full fee, and warning
that the case will be dismissed if full fee is not paid)).
to § 1915(g), Plaintiff may not proceed in forma
pauperis in this civil action. Therefore, the
Court's order granting Plaintiff leave to proceed in
forma pauperis is vacated. Plaintiff is given time to
pay the full $400.00 district court filing fee to the Court. If
Plaintiff fails to pay the full fee within the prescribed
time, the Complaint will be dismissed based upon
Plaintiff's failure to satisfy the statutory district
court filing fee required by 28 U.S.C. § 1914. If the
fee is paid in full by the deadline, the Court will consider
the remaining arguments in Defendants' Motion to
Reconsider (Doc. 61) and Plaintiff's Motion for Additions
to the Record, Renewed Motion to Appoint Counsel, Motion for
Discovery, and Motion for Extension of Time (Doc. 63).
IS THEREFORE ORDERED BY THE COURT that the portion
of the Court's December 21, 2018 Memorandum and Order
(Doc. 13) granting Plaintiff leave to proceed in forma
pauperis is vacated. ...