Nathan Jacobs v. Shelly Carr , 675 F. App'x 383 ( 2017 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 16-6372
NATHAN E. JACOBS,
Plaintiff - Appellant,
v.
MRS. SHELLY CARR, Case Manager,
Defendant - Appellee.
Appeal from the United States District Court for the Northern
District of West Virginia, at Elkins. John Preston Bailey,
District Judge. (2:16-cv-00001-JPB-MJA)
Submitted: January 12, 2017 Decided: February 7, 2017
Before GREGORY, Chief Judge, and MOTZ and AGEE, Circuit Judges.
Vacated and remanded by unpublished per curiam opinion.
Nathan E. Jacobs, Appellant Pro Se.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Nathan E. Jacobs appeals the district court’s order
dismissing his Bivens 1 complaint. Because the district court
incorrectly determined that Jacobs has three qualifying strikes
under the Prison Litigation Reform Act (PLRA), 28 U.S.C.
§ 1915(g) (2012), we vacate the order of dismissal and remand.
In concluding that Jacobs had three strikes under the PLRA
at the time he filed the subject complaint, the district court
relied on Jacobs v. U.S.A. Supreme Court Clerk, Civ. Action No.
10-1332, 2010 WL 3123169 (D.D.C. Aug. 9, 2010) (unpublished);
Jacobs v. Supreme Court of the United States, No. 10-5271, 2011
WL 2199975 (D.C. Cir. May 17, 2011) (unpublished) (“Supreme
Court”); and Jacobs v. Holder, No. 4:10-cv-1544, 2010 WL 4449357(N.D. Ohio Nov. 1, 2010) (unpublished). We conclude that the
district court erred in finding that Supreme Court properly
qualifies as a strike.
In Supreme Court, the U.S. Court of Appeals for the
District of Columbia Circuit denied relief, stating that
“[b]ecause the appropriate disposition is so clear, summary
action is warranted.” 2011 WL 2199975, at *1. However, the
court did not reference § 1915 or explicitly state that Jacobs’
1Bivens v. Six Unknown Named Agents of Fed. Bureau of
Narcotics, 403 U.S. 388 (1971).
2
appeal was frivolous, malicious, or failed to state a claim for
relief. In light of our decision in Blakely v. Wards, 738 F.3d
607 (4th Cir. 2013) (en banc), in which we emphasized the
importance of the express language used by the adjudicating
court, id. at 613-15, 617, we conclude that the language in
Supreme Court does not evidence a PLRA strike. 2
Accordingly, we vacate the order of dismissal and remand
for further proceedings. We deny Jacobs’ pending motion. We
dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before
this court and argument would not aid the decisional process.
VACATED AND REMANDED
2A PACER search did not reveal any other action that could
properly qualify as a strike against Jacobs.
3