United States District Court, W.D. Pennsylvania
BRUCE L. WISHNEFSKY, Plaintiff,
M.D. JAWAD A. SALAMEH, Defendant.
AMENDED MEMORANDUM ORDER
LISA P. LENIHAN, Magistrate Judge.
Upon review of Defendant's Motion to Vacate (ECF No. 12) this Court's Order dated June 4, 2015, which granted Plaintiff leave to proceed in forma pauperis, and Plaintiff's Response in Opposition thereto (ECF No. 15), the following Amended Memorandum Order is entered.
Defendant maintains that Plaintiff has accumulated at least "three strikes" within the meaning of 28 U.S.C. § 1915(g), and, as such, he cannot proceed in forma pauperis in this action. Plaintiff maintains that he has, at most, one strike.
The "three strikes rule" is codified at 28 U.S.C. § 1915(g) and 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 was 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). In sum, under the three strikes rule, a prisoner who, on three or more prior occasions while incarcerated, has filed an action in a federal court that was dismissed as frivolous, malicious, or for failure to state a claim upon which relief may be granted, must be denied in forma pauperis status unless he is in imminent danger of serious physical injury. 28 U.S.C. § 1915(g).
While not all of the cases that Defendant relies on in support of his motion were dismissed as frivolous, malicious, and/or for failure to state a claim, Plaintiff has had at least three cases dismissed on that basis. Specifically, Wishnefsky v. Ouly, et al., 1:98-cv-907 (M.D. Pa. 1998) (dismissed pursuant to Fed.R.Civ.P. 12(b)(6) on October 4, 1999); Wishnefsky v. Carroll, et al., 4:99-cv-1494 (M.D. Pa. 1999) (dismissed pursuant to Fed.R.Civ.P. 12(b)(6) on December 3, 1999); and Wishnefsky v. Kurtz, et al., 4:99-cv-1889 (M.D. Pa. 1999) (dismissed pursuant to 28 U.S.C. § 1915A as being frivolous and for failure to state a claim on November 12, 1999). Furthermore, even though Plaintiff did not proceed in forma pauperis in all of the aforementioned cases, the Third Circuit Court of Appeals has held that "strikes may be accrued in actions or appeals regardless of whether the prisoner has prepaid the filing fee or is proceeding IFP." Byrd v. Shannon, 715 F.3d 117, 124 (3d Cir. 2013).
Plaintiff maintains that the dismissal in Wishnefsky v. Carroll, et al., 4:99-cv-1494 (M.D. Pa. 1999), does not count as a strike because it was a RICO (Racketeer Influenced and Corrupt Organizations Act) action, and not civil rights. However, this distinction is of no consequence within the meaning of § 1915(g). See 28 U.S.C. § 1915(g) ("In no event shall a prisoner bring a civil action... if the prisoner has, on 3 or more occasions, ... brought an action ... that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted....) (emphasis added). See also Bonner v. Bosworth, 451 F.Appx. 410, 412 (5th Cir. 2011) (affirming the district court's dismissal of plaintiff's complaint alleging RICO claims as frivolous and for failure to state a claim and stating that the district court's dismissal counts as a strike for purposes of 28 U.S.C. § 1915(g)); McPherson v. Curry, 253 F.3d 706 (5th Cir. 2001) (stating that district court's dismissal of plaintiff's claims brought under, inter alia, RICO as frivolous counts as a strike for purposes of § 1915(g)); Keys v. Pennsylvania, 2011 WL 766978, at n.17 (M.D. Pa. Jan. 19, 2011) (upon screening of complaint, recommending dismissal of action, which included RICO claims, and stating that it may constitute the plaintiff's third strike under § 1915(g) if the court dismisses the entire case), adopted by 2011 WL 766950 (M.D. Pa. Feb. 25, 2011) (dismissing complaint).
Plaintiff also maintains that the dismissal in Wishnefsky v. Kurtz, et al., 4:99-cv-1889 (M.D. Pa. 1999), does not count as a strike because the defendants' motions to dismiss were denied before the case was transferred to the Middle District of Pennsylvania. Plaintiff is incorrect. While it is true that this action was originally filed in the United States District Court for the Eastern District of Pennsylvania, Wishnefsky v. Kurtz, et al., 2:98-cv-593 (E.D. Pa. 1998), and it is also true that the defendants filed motions to dismiss that were denied by the court in the Eastern District, following the denial of those motions Wishnefsky voluntarily dismissed his claims against two of the three defendants and the case was thereafter dismissed as frivolous and for failure to state a claim by the Middle District upon transfer thereto. The dismissal of the case was affirmed on appeal on May 22, 2001, with the Third Circuit stating the following:
We agree with the District Court that Wishnefsky's complaint lacks merit, for essentially the same reasons. While it is true that the appeal raises interesting questions concerning whether the District Court's dismissal under section 1915A was improper in light of the earlier denial of the defendants' motions to dismiss, there is no need to address them here. Even if the District Court should not have dismissed the complaint under section 1915A, section 1915(e) requires a court to dismiss an action at any time if it is frivolous or fails to state a claim. We agree with the court's determination that Wishnefsky's complaint met these criteria and, thus, find that the court could properly have dismissed the complaint under section 1915(e). Although it is true that most courts have held that a complaint should not be dismissed under section 1915(e)(2)(B) unless it is clear that amendment would be futile, we find that the District Court did not err in failing to allow Wishnefsky to amend because we do not believe that amendment could rescue his complaint.
Wishnefsky v. Kurtz, et al., No. 00-3011 (3d Cir. May 22, 2001) (footnote omitted and emphasis contained within).
Although Plaintiff's claims initially survived motions to dismiss, the claims against two of the defendants, Riley and Fanelli, were not disposed of on summary judgment, or in any other manner. Instead, the claims ceased to be part of the action when Plaintiff decided to voluntarily dismiss them. The action itself, however, was dismissed on one of the enumerated grounds qualifying as a strike in § 1915(g). As aptly stated by the Sixth Circuit Court of Appeals in Taylor v. First Medical Management, 508 F.Appx. 488 (6th Cir. 2012),
A plaintiff cannot avoid incurring a strike by simply voluntarily dismissing a claim. This rule would subvert the purposes of the PLRA: a plaintiff could guard against incurring strikes by filing an action with a bogus claim and then voluntarily dismissing that claim, thereby allowing inmates to easily avoid strikes even if all of their claims were meritless. And we will not assume that a voluntary dismissal with prejudice means that a case had merit.
Id. at 497. See also Cain v. Com. of Va., 982 F.Supp. 1132, 1138 & n.1 (E.D. Va. 1997) (counting dismissal of action as a strike when plaintiff voluntarily dismissed claims against one defendant and then later the court dismissed the action as malicious). But see Tolbert v. Stevenson, 635 F.3d 646 (4th Cir. 2011) (declining to count as strike case where court dismissed some claims as frivolous and then later plaintiff voluntarily dismissed the entire action). Because this dismissal comports with the language of the statue, and the purposes of the PLRA, the Court will count it as a strike. Therefore, ...