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Rambert v. Krasner

United States District Court, E.D. Pennsylvania

January 9, 2020

ERIC X. RAMBERT, Plaintiff,
v.
LAWRENCE KRASNER, et al., Defendants.

          MEMORANDUM

          JEFFREY L. SCHMEHL, J.

         Currently 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 pauperis.

         According 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. 1997).

         In its 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.[1] 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).

         I. Rambert v. Barrett, W.D. Pa. Civ. A. No. 95-71

         In his 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.[2] 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.

         First, 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 credible.[3]

         Rambert's 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.

         Second, 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).

         Third, 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 strike.”).

         Fourth, 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.[4] 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 granted”).

         In sum, it is evident that Civil Action Number 95-71 counts as a strike for purposes of § 1915(g).

         II. Rambert v. Lavan, Civ. A. No. 03-370

         In 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 ...


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