United States District Court, E.D. Pennsylvania
ERIC X. RAMBERT, Plaintiff,
LAWRENCE KRASNER, et al., Defendants.
JEFFREY L. SCHMEHL, J.
before the Court is Eric X. Rambert's “Motion
Requesting Reversal of Order of November 12th
2019, ” (ECF No. 7), which the Court will construe as a
Motion for Reconsideration. Rambert seeks reconsideration of
the Court's November 12, 2019 Order denying him leave to
proceed in forma pauperis pursuant to 28 U.S.C.
§ 1915(g) and directing him to pay the applicable fees
if he sought to proceed with this case. (ECF No. 6.) For the
following reasons, the Court will grant Rambert's Motion
and require him to submit a certified copy of his prison
account statement to the Court in accordance with 28 U.S.C.
§ 1915(a)(2) if he seeks to proceed in forma
to § 1915(g), a prisoner who on three or more prior
occasions while incarcerated has filed an action or appeal in
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 at
the time that the complaint was filed. Abdul-Akbar v.
McKelvie, 239 F.3d 307, 310-11 (3d Cir. 2001) (en banc).
“[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.” Byrd v.
Shannon, 715 F.3d 117, 126 (3d Cir. 2013).
“[D]ismissals for frivolousness prior to the passage of
the [Prison Litigation Reform Act] are included among [a
plaintiff's] three [strikes].” Keener v. Pa.
Bd. of Prob. & Parole, 128 F.3d 143, 144-45 (3d Cir.
prior Order, the Court identified three cases filed by
Rambert that counted as strikes for purposes of §
1915(g): (1) Rambert v. Lavan, M.D. Pa. Civ. A. No.
03-370 (November 6, 2003 order granting motion to dismiss and
dismissing complaint for failure to state a claim); (2)
Rambert v. Horn, W.D. Pa Civ. A. No. 97-337
(dismissed for failure to state a claim on December 5, 1997);
and (3) Rambert v. Barrett, W.D. Pa. Civ. A. No.
95-71 (dismissed as “legally frivolous” on
February 21, 1995). The Court also observed that the United
States District Court for the Western District of
Pennsylvania has treated Rambert as a “three
striker” based on those strikes. See Rambert
v. Wetzel, Civ. A. No. 18-38, 2018 WL 816900, at *2
(W.D. Pa. Jan. 19, 2018) (treating Rambert as a three
striker), report and recommendation adopted, Civ. A.
No. 18-38, 2018 WL 807156 (W.D. Pa. Feb. 9, 2018);
Rambert v. Johnson, Civ. A. No. 16-72, 2016 WL
11482394, at *2 (W.D. Pa. Aug. 9, 2016) (“Because
Plaintiff Rambert has filed at least three lawsuits which
were dismissed as frivolous, malicious, or for failure to
state a claim, he is barred from proceeding in forma
pauperis under 28 U.S.C. § 1915(g).”),
report and recommendation adopted, Civ. A. No.
16-72, 2016 WL 4921089 (W.D. Pa. Sept. 15, 2016). The United
States District Court for the Middle District of Pennsylvania
has also treated Rambert as a three-striker based on those
three cases. See Rambert v. Dep't of Corr., M.D.
Pa. Civ. A. No. 15-320 (November 4, 2015 Order revoking
Rambert's in forma pauperis status because he
has three strikes).
Rambert v. Barrett, W.D. Pa. Civ. A. No.
Motion, Rambert alleges that the Court erroneously subjected
him to § 1915(g) because it mistakenly counted
Rambert v. Barrett, W.D. Pa. Civ. A. No. 95-71 as a
strike. A party seeking reconsideration must
establish “(1) an intervening change in the controlling
law; (2) the availability of new evidence that was not
available [at the time of the Court's prior ruling]; or
(3) the need to correct a clear error of law or fact or to
prevent manifest injustice.” See Max's Seafood
Café ex rel. Lou-Ann, Inc. v. Quinteros, 176 F.3d
669, 677 (3d Cir. 1999). The Court will address each of
Rambert's arguments in turn.
Rambert alleges that the United States District Court for the
Western District is “corrupt and has made up [that]
lawsuit” because there “is no DOC record of money
being withdrawn from [his] prison account” to pay for
the suit. (ECF No. 7 at 1.) The Court rejects Rambert's
assertion that he did not file the case. A court “may
take judicial notice of the contents of another Court's
docket.” Orabi v. Attorney Gen. of the U.S.,
738 F.3d 535, 537 (3d Cir. 2014). The official record on
CM/ECF lists Rambert as the plaintiff by his name and DOC
inmate number, which matches his current inmate number. The
case names as the defendant Robert M. Barrett, Rambert's
court-appointed counsel. (See ECF No. 7 at 4.)
Rambert's allegation that he did not file the case is not
assertion appears to be that, if he had in fact filed the
case, the Pennsylvania Department of Corrections would have
deducted filing-fee payments from his prison account in
accordance with 28 U.S.C. § 1915(b), which requires
prisoners who file a civil action to pay the filing fee in
installments if they are given leave to proceed in forma
pauperis. However, § 1915(b) was passed as part of
the Prison Litigation Reform Act, which was enacted in 1996;
it was not in existence at the time Rambert filed the case in
1995, so he would not have been required to make any such
payments in connection with the case. See Bruce v.
Samuels, 136 S.Ct. 627, 629 (2016) (“Until 1996,
indigent prisoners, like other indigent persons, could file a
civil action without paying any filing fee.”). This
argument is therefore frivolous.
Rambert alleges that Rambert v. Barrett, W.D. Pa.
Civ. A. No. 95-71 cannot count as a strike because the docket
does not state whether the dismissal as legally frivolous was
with prejudice or without prejudice, and dismissals without
prejudice do not count as a strike. (ECF No. 7 at 2.);
cf. Millhouse, 866 F.3d at 154 (“[A] dismissal
without prejudice for failure to state a claim does not rise
to the level of a strike.”). However, when a Court does
not specify whether an involuntary dismissal operates with or
without prejudice, the dismissal is presumed to be with
prejudice. See Ball v. Famiglio, 726 F.3d 448, 460
n.17 (3d Cir. 2013) (“The District Court did not state
that any of the dismissals at issue in these appeals were
without prejudice, and so they are presumed to be with
prejudice, and they ‘operate[ ] as an adjudication on
the merits.'” (quoting Fed.R.Civ.P. 41(b)),
abrogated on other grounds by Coleman v. Tollefson,
135 S.Ct. 1759, 1763 (2015); Shane v. Fauver, 213
F.3d 113, 115 (3d Cir. 2000) (“Because the order did
not specify that the dismissal was without prejudice, under
Fed.R.Civ.P. 41(b) the dismissal ‘operates as an
adjudication upon the merits.'”); see also
McLean v. United States, 566 F.3d 391, 398-99 (4th Cir.
2009) (“An unqualified dismissal for failure to state a
claim is presumed to operate with prejudice; the addition of
the words ‘with prejudice' to modify such a
dismissal is simply not necessary.”). That is
especially so with frivolous claims, as “dismissals of
frivolous claims do not require leave to amend.”
Grayson v. Mayview State Hosp., 293 F.3d 103, 112-13
(3d Cir. 2002). Accordingly, the dismissal of Rambert v.
Barrett, W.D. Pa. Civ. A. No. 95-71 “as legally
frivolous” is presumed to be with prejudice and, thus,
operates as a strike. See Short v. Webb, Civ. A. No.
18-4130, 2019 WL 6349228, at *2 (E.D. Pa. Nov. 27, 2019)
(rejecting the same argument).
Rambert alleges that a case in which in forma
pauperis status was never granted was neither
“filed” nor “brought, ” and therefore
cannot count as a strike under § 1915(g), which only
applies when a prisoner previously “brought” an
action while incarcerated that was dismissed on a statutory
ground. (ECF No. 7 at 3 & 4.) This argument is mistaken
for two reasons. One, the docket reflects that Rambert was
granted leave to proceed in forma pauperis in a
January 19, 1995 order prior to the dismissal of his case as
frivolous. See Rambert v. Barrett, W.D. Pa. Civ. A.
No. 95-71 (ECF No. 2). Two, the Third Circuit has rejected
the notion that leave to proceed in forma pauperis
must be granted for a case that was dismissed upon a
statutory ground enumerated in § 1915(g) to count as a
strike. See Brown v. Sage, 941 F.3d 655, 662 (3d
Cir. 2019) (en banc) (“That § 1915(g) uses the
verb ‘brought,' not ‘commenced' or
‘filed,' underscores that court approval of an IFP
application is not necessary for an action to count as a
Rambert alleges that the original records for Rambert v.
Barrett, W.D. Pa. Civ. A. No. 95-71 have been destroyed,
so the Court may not count the case as a strike. (ECF No. 7
at 3.) However, as noted above, the Court may take judicial
notice of other courts' dockets, and the record on CM/ECF
constitutes the official docket for the case. Here, the
docket is clear that Rambert filed Rambert v.
Barrett, W.D. Pa. Civ. A. No. 95-71 while incarcerated
and that the case was dismissed as legally frivolous.
Accordingly, the Court may count the case as a
strike. See Harris v. City of New York,
607 F.3d 18, 23 (2d Cir. 2010) (“Nothing in the PLRA or
the caselaw of this or other courts, . . . suggests that
courts have an affirmative obligation to examine actual
orders of dismissal.”); Thompson v. Drug Enf't
Admin., 492 F.3d 428, 435 (D.C. Cir. 2007) (counting as
strikes cases in which “the courts' finding of
frivolousness appeared in the PACER docket report”);
Andrews v. King, 398 F.3d 1113, 1120 (9th Cir. 2005)
(“In some instances, the district court docket records
may be sufficient to show that a prior dismissal satisfies at
least one of the criteria under § 1915(g) and therefore
counts as a strike.”); Royal v. Rutherford
Police, Civ. A. No. 11-4862, 2012 WL 1551338, at *3 n.8
(D.N.J. Apr. 27, 2012) (in assessing strikes, “[t]he
district court may rely on the relevant docket sheets if they
indicate with sufficient clarity that the prior suits were
dismissed on the grounds that they were frivolous, malicious,
or failed to state a claim upon which relief may be
it is evident that Civil Action Number 95-71 counts as a
strike for purposes of § 1915(g).
Rambert v. Lavan, Civ. A. No. 03-370
reviewing Rambert's motion, the Court reviewed all of
Rambert's strikes and identified a legal issue not
previously addressed. The case of Rambert v. Lavan,
Civ. A. No. 03-370 was filed by Rambert in state court and
then removed to federal court by the defendants, which raises
the question of whether a case removed to federal court and
dismissed on a statutory ...