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Brown v. M. Adams

United States District Court, W.D. Pennsylvania

September 3, 2019

CORDIRO BROWN, Plaintiff,
v.
M. ADAMS, PHILLIP MCCRACKEN, RICHARD COON, and PEMALE BEHR, Defendants.

          ORDER RE: ECF NO. 14

          MAUREEN P. KELLY UNITED STATES MAGISTRATE JUDGE.

         Cordiro Brown, ("Plaintiff), has been granted leave to proceed in forma pauperis, ECF No. 2, and his pro se prisoner civil rights Complaint has been filed, ECF No. 8. In the Order, granting Plaintiffs IFP Motion (the "IFP Order"), the Court noted that Plaintiff had acquired three strikes but that he had alleged exposure to second hand smoke and pursuant to case law from the United States Court of Appeals for the Third Circuit, such exposure could come within the narrow exception for three strikes, which requires allegations of imminent danger of serious physical injury. Gibbs v. Cross, 160 F.3d 962 (3d Cir. 2001). In the IFP Order, the Court stated that after service, the Defendants could challenge the factual allegations of Plaintiff and whether Plaintiff actually comes within the imminent danger exception. As noted, it is the Court that makes this determination, not a jury. If the Court determines that Plaintiff does not come within the exception, the IFP Order could then be vacated.

         On August 9, 2019, Plaintiff filed a "Motion to Amend In Forma Pauperis Order" in which he made two distinct claims. First, Plaintiff claimed that the IFP Order erred in counting Brown v. Green. No. 487-cv-2018 (M.D. Pa.) as a strike. Secondly, Plaintiff claimed that the prison authorities erred in deducting money from his account and requested a delay in having to pay the filing fees piecemeal as required even if granted IFP. We will address each claim in order.

         Plaintiff first alleges that we erred in counting Brown v. Green, No. 487-cv-2018 (M.D. Pa.) as a strike. We are unpersuaded.

         The United States Court of Appeals for the Third Circuit set out a bright line rule for what qualifies as a strike. In Byrd v. Shannon, 715 F.3d 117 (3d Cir. 2013), the Court of Appeals held:

Thus, we adopt the following rule: a strike under § 1915(g) will accrue only if the entire action or appeal is (1) dismissed explicitly because it is "frivolous," "malicious," or "fails to state a claim" or (2) dismissed pursuant to a statutory provision or rule that is limited solely to dismissals for such reasons, including (but not necessarily limited to) 28 U.S.C. §§ 1915A(b)(1), 1915(e)(2)(B)(i), 1915(e)(2)(B)(ii), or Rule 12(b)(6) of the Federal Rules of Civil Procedure.

         Moreover, not only must a court do so, it must do so correctly. See, e, g., Millhouse v. Heath, 866 F.3d 152, 154 (3d Cir. 2017) ("Because the District Court explicitly and correctly concluded that Millhouse's complaint revealed an immunity defense on its face and dismissed with prejudice for failure to state a claim upon which relief may be granted pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii), Doe qualifies as a strike.").

         We find that the dismissal of Plaintiff s civil action in Brown v. Green, No. 487-cv-2018 by the United States District Court for the Middle District of Pennsylvania meets these tests.

         First, the District Court granted the Motion to Dismiss for Failure to state a claim upon which relief could be granted, under Fed.R.Civ.P. 12(b)(6), that was filed by the defendants in Brown v. Green wherein they asserted the defense of res judicata. The District Court did so because it found that Plaintiffs suit was barred by res judicata. We attach hereto a copy of the District Court's Memorandum as Appendix I. The Memorandum makes clear that the Middle District in Brown v. Green. No. 487-cv-2018, granted the Defendants' Motion to Dismiss that had been filed pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure and that the civil action was entirely dismissed with prejudice for failure to state a claim upon which relief could be granted.

         Moreover, not only did the Middle District expressly dismiss the Complaint in Brown v. Green for failure to state a claim upon which relief could be granted pursuant to Fed.R.Civ.P. 12(b)(6), with prejudice, it did so correctly. Baxter v. Corrections Corp. of Am., 3-15-0205, 2015 WL 3397772, at *2 (M.D. Tenn. May 26, 2015) ("Because the instant case is barred by the doctrine of res judicata, it fails to state a claim on which relief may be granted .... For these reasons, not only should the instant case be dismissed with prejudice, dismissal of the instant case should count as a 'strike' under § 1915(g)."). A dismissal of a Complaint because it is barred by res judicata is properly dismissed for failure to state a claim upon which relief can be granted and, such a dismissal constitutes a "strike." Walker v. Page, 59 Fed.Appx. 896, 900 (7th Cir. 2003) (case squarely barred by res judicata counts as strike under § 1915(g)); Higgins v. Carpenter, 258 F.3d 797, 801 (8th Cir. 2001) (prior cases dismissed as barred by res judicata qualified as strikes); Burke v. St. Louis City Jails, 603 Fed.Appx. 525 (8th Cir. 2015) (affirming the portion of the district court's decision determining that the plaintiff had acquired three qualifying strikes when one of the cases the district court cited was dismissed on res judicata grounds); Harmon v. Webster. 263 Fed.Appx. 844, 846 (11th Cir. 2008) (affirming the district court's determination that its dismissal on res judicata grounds should count as a strike for purposes of § 1915(g)). Hence, Brown v. Green surely constitutes a strike and indeed, Plaintiffs third strike.

         Moreover, we reject, as legally unfounded, Plaintiffs contention that because he has appealed the District Court's dismissal of his case in Brown v. Green, that the pendency of the appeal prevents this Court from counting the Middle District's dismissal as a strike. This argument has been made to, and, rejected by the United States Court of Appeals for the Third Circuit. Parker v. Montgomery County Correctional Facility. 870 F.3d 144 (3d Cir. 2017) (holding that the pendency of an appeal from the district Court's dismissal which counted as a third strike did indeed prevent the now three struck prisoner from proceeding in forma pauperis on appeal from the third strike).

         Accordingly, Brown v. Green, No. 487-cv-2018 (M.D. Pa.) counts as a strike and thus, contrary to Plaintiffs assertion in his pending Motion, Plaintiff has indeed accumulated three strikes and, so, contrary to Plaintiffs contention, if the Court determines that Plaintiff does not come within the imminent danger exception, the Order granting his IFP Motion could indeed be vacated and he could be required to pay the entire filing fee or face dismissal. Hence, his Motion to Amend the In Forma Pauperis Order is DENIED to the extent that it sought to have this Court conclude that Brown v. Green does not constitute a strike.[1]

         Plaintiffs second complaint is that the prison authorities violated this Court's IFP Order by deducting money from his account when he had less than $10.00 in his inmate trust account. We are unpersuaded. Plaintiff attached a copy of his monthly account statement showing that on August 2, 2019, $5.01was deducted from his inmate account when there was a negative 35 cents balance in the account. The description of the deduction was "Legal Fees (in Forma Pauperis)." ECF No. 14-1. We are not persuaded that this deduction was for this case or pursuant to any order issued by this Court.

         First, we note that deductions by Inmate Account Officers for federal filing fees paid to District Courts indicate the civil case number for the case in which the fee is being paid. See 14-1 at 1 (entry of July 16, 2019). No such description was made on the fee Plaintiff is challenging herein. Secondly, no payment for this case has been received by the Clerk's Office. Furthermore, we take judicial notice that Plaintiff has filed a nearly identical motion in the United States Court of Appeals for the Third Circuit, alleging that the Inmate Accounting Officer is not complying with the Third Circuit's order assessing the PLRA payments and asserting the very same deduction made on August 2, 2019 which he complains about herein is being erroneously deducted from his account in violation of the Third Circuit Court's Order. Brown v. Green, No. 19-245 (3d Cir. Motion filed 8/9/2019). Plaintiffs nearly identical motion filed in the Third ...


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