The opinion of the court was delivered by: (Magistrate Judge Carlson)
In this action, Plaintiff Edmon Gasaway, a federal inmate presently incarcerated at the Federal Correctional Institution in Ray Brook, New York, has brought Bivens*fn1 claims and claims under the Federal Tort Claims Act, 28 U.S.C. §§ 2671, et seq. ("FTCA"), against the Warden of the Federal Correctional Institution at Allenwood, Pennsylvania, along with other unnamed Defendants, alleging that the Defendants took certain tax documents from Gasaway's prison cell in March 2010, while he was engaged in ongoing administrative proceedings with the Internal Revenue Service. Gasaway contends that the Defendants have continued to withhold his tax papers, and are thereby prejudicing his proceedings with the IRS.
When Gasaway commenced this action, he did not pay the required $350 filing fee. Instead, he moved the Court for leave to proceed in forma pauperis, pursuant to 28 U.S.C. § 1915, claiming that he lacked the resources to pay the filing fee or to serve the complaint upon the Defendants. On March 7, 2012, the Court entered an order granting Gasaway leave to proceed in forma pauperis, and directing service of the complaint. (Doc. 12)
Now pending before the Court is Defendants' motion to revoke Plaintiff's in forma pauperis status pursuant to 28 U.S.C. § 1915(g). In support of their motion, Defendants assert that Gasaway has filed at least three civil actions that were dismissed by courts as frivolous, or otherwise for failure to state a claim, and as a result he has now forfeited his right to bring suit in federal court in forma pauperis, and he should be required to pay the filing fee before this litigation can proceed.
We have considered the motion, and have reviewed the cases that Defendants have identified as support for their assertion that Gasaway has "three strikes" against him as a Plaintiff proceeding in forma pauperis. Upon consideration, we find that Defendants have only demonstrated that two of Gasaway's federal actions were dismissed as frivolous, or for failure to state a claim, before Gasaway initiated the instant action on December 28, 2011. We note that after Gasaway filed the lawsuit pending before this Court, other district courts have issued orders dismissing other actions that Gasaway brought in the Northern District of New York for failure to state a claim. As explained briefly below, for purposes of adjudicating the pending motion, we are obliged to consider only those "strikes" that Defendants establish Gasaway had accumulated as of the date he commenced the instant action. Because Defendants have established that Gasaway had only two "strikes" at that time, we find that the motion to revoke Gasaway's in forma pauperis status should be denied at this time, without prejudice to Defendants' filing a new motion to revoke if they determine that prior to initiating this lawsuit, Gasaway had had three or more lawsuits dismissed as frivolous or for failure to state a claim.
Defendants argue that the Court should revoke Gasaway's in forma pauperis status under 28 U.S.C. § 1915(g), because he has at least three merits-based dismissals of other actions that Gasaway previously filed.
Section 1915(g) of the Title 28 of the United States Code provides that:
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). The purpose of this "three strikes" provision was to restrain inmate abuses of the court system, and to deter the filing of multiple frivolous lawsuits by inmates. See Abdul-Akbar v. McKelvie, 239 F.3d 307, 318 (3d Cir. 2001) ("[T]he legislation was aimed at the skyrocketing numbers of claims filed by prisoners -- many of which are emotionally driven but legally deficient -- and the corresponding burden those filings have placed on the federal courts."). The legislation was thus intended to serve "as a rational deterrent mechanism, forcing potential prisoner litigants to examine whether their filings have any merit before they are filed, and disqualifying frequent fliers who have failed in the past to carefully evaluate their claims prior to filing." Id. Notably, "the bar imposed by this provision does not preclude an inmate from bringing additional suits. It does, however, deny him or her the right to obtain in forma pauperis status." Gibbs v. Cross, 160 F.3d 962, 965 (3d Cir. 1998).
Importantly for purposes of this case, "[b]y its terms, § 1915(g) governs only the circumstances under which a prisoner may 'bring' a civil action in forma pauperis, which means that its impact must be assessed at the time a prisoner files his or her complaint." Lopez v. U.S. Dep't of Justice, 228 F. App'x 218 (3d Cir. 2007) (citing Abdul-Akbar, 239 F.3d at 313 and Gibbs v. Ryan, 160 F.3d 160, 162-63 (3d Cir. 1998)). Accordingly, "only the strikes earned up to that time are relevant." Id.
The statute thus does not permit courts to revoke a plaintiff's in forma pauperis status if a prisoner earns a third strike after bringing the lawsuit in which the in forma pauperis status is granted and challenged. Id. See also Gibbs, 160 F.3d at 163 (observing that Congress "limited the 'three strikes' provision to an inmate's ability to 'bring' an action. Congress could have tied the ...