Jackie Ray Roller v. Stanley Tuggle

Case: 16-11693 Date Filed: 11/22/2016 Page: 1 of 3
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 16-11693
Non-Argument Calendar
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D.C. Docket Nos. 1:92-cv-00383-SCJ; 1:92-cv-00388-SCJ
JACKIE RAY ROLLER,
Plaintiff-Appellant,
versus
STANLEY TUGGLE,
BILL LEMACKS,
D 6,
Defendants-Appellees.
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Appeal from the United States District Court
for the Northern District of Georgia
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(November 22, 2016)
Before HULL, WILSON and WILLIAM PRYOR, Circuit Judges.
PER CURIAM:
Case: 16-11693 Date Filed: 11/22/2016 Page: 2 of 3
Jackie Ray Roller, a Georgia state prisoner, appeals the denial of his ten
motions to vacate. Fed. R. Civ. P. 60(b)(6). Roller moved to vacate judgments that
dismissed ten civil actions he had filed between 1992 and 1997, at least four of
which were dismissed as frivolous under the “three strikes” provision of the Prison
Litigation Reform Act. 28 U.S.C. § 1915(g). We affirm.
We review the denial of a motion for relief from a judgment for abuse of
discretion. Hartford Cas. Ins. Co. v. Crum & Forster Specialty Ins. Co., 828 F.3d
1331, 1333 (11th Cir. 2016). That standard requires that we affirm unless the
district court applied an incorrect legal standard or made findings of fact that were
clearly erroneous. Id. Roller’s “burden on appeal is heavy.” See Cano v. Baker,
435 F.3d 1337, 1342 (11th Cir. 2006). He must establish that his “circumstances
are sufficiently extraordinary to warrant relief”; that is, he must have “a
justification so compelling that the [district] court was required to vacate its
[judgment].” Id. (internal quotation marks and citations omitted).
Roller challenges the denial of his motions on two grounds, both of which
are foreclosed by Rivera v. Allin, 144 F.3d 719 (11th Cir. 1998), abrogated on
other grounds, Jones v. Bock, 549 U.S. 199 (2007). Roller argues that the Act
cannot be applied retroactively to him, but Rivera holds that “federal courts may
properly count as strikes lawsuits or appeals dismissed as frivolous, malicious or
failing to state a claim upon which relief may be granted prior to April 26, 1996,”
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id. at 730. Roller also argues that section 1915(g) interferes with his right of access
to the courts, in violation of the First Amendment, and denies him due process and
equal protection, in violation of the Fifth and Fourteenth Amendments. As we
concluded in Rivera, section 1915(g) does not impede a prisoner’s access to the
courts by requiring him to prepay filing fees, id. at 723–24; does not violate due
process by revoking a prisoner’s “privilege to proceed in forma pauperis” after he
received “a full and fair opportunity to participate in at least three prior cases,” id.
at 727; and does not deny equal protection by requiring “frequent filer prisoner
indigents” to pay their filing fees to “further the goal of curtailing abusive prison
litigation,” id. at 727–28. The district court did not abuse its discretion when it
denied Roller’s motions.
The district court also lacked authority to determine which of Roller’s prior
judgments count as strikes under the Act. “Article III of the Constitution limits the
jurisdiction of the federal courts to actual ‘cases’ or ‘controversies,’” and there is
no “justiciable controversy” if a party is “asking for an advisory opinion.” Miller v.
FCC, 66 F.3d 1140, 1145 (11th Cir. 1995). The determination that Roller seeks can
be made “[i]f and when” he is “appealing from a third-strike trial-court dismissal.”
See Coleman v. Tollefson, 135 S. Ct. 1759, 1765 (2015).
We AFFIRM the denial of Roller’s motions to vacate.
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