Fisher v. Fulwood, Jr.

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
RICHARD FISHER, )
)
Plaintiff, )
)
v. ) Civil Action No. 11-2107 (RJL)
)
ISAAC FULWOOD, JR., )
)
Defendant. )
Sf-
MEMoRANDuM AND ORDER
July £,/ , 2012
Defendant moves for reconsideration of the Order of December 21, 2011, granting
plaintiffs motion to proceed in forma pauperis ("IFP"), which defendant has opposed. See
Order, ECF No.6; Def.'s Mot. for Reconsideration, ECF No. 12. Defendant contends that
plaintiff should be barred from proceeding IFP under the three-strike provision of the Prison
Litigation Reform Act, which states as follows:
In no event shall a prisoner bring a civil action or appeal a judgment in a
civil action or proceeding under this section if the prisoner has, on 3 or
more prior occasions, while incarcerated ... brought an action or appeal
in a court of the United States that was dismissed on the grounds that it
is frivolous, malicious, or fails to state a claim upon which relief may be
granted, unless the prisoner is under imminent danger of serious physical
injury.
28 U.S.C. § 1915(g). Such dismissals are authorized by 28 U.S.C. § 1915(e)(2) and§ 1915A, the
latter of which requires the screening of prisoners' civil complaints and, if appropriate, the
immediate dismissal of such complaints.
Defendant has the burden of "produc[ing] evidence capable of showing that the district
court dismissed the case on section 1915(g) grounds." Thompson v. DEA, 492 F.3d 428,436
(D.C. Cir. 2007). "Unexplained dismissals," id. at 435, and those based on grounds not listed in
section 1915(g), do not suffice in this circuit. See id. at 439 (declining "to treat all section 1915A
dismissals as presumptive strikes."). Furthermore, "[i]f at least one claim within an action or
appeal falls outside section 1915(g), the action or appeal does not count as a strike," id at 440,
and the affirmance of a qualifying dismissal by the court of appeals does not count as a strike
absent the court's stating "that the appeal was frivolous, malicious, or failed to state a claim." /d.
at 436.
Under the foregoing criteria, defendant has identified just one qualifying strike. Def. 's
Mot. for Reconsideration, Ex. A (Fisher v. Casterline, No. CV03-2231-A (W.D. La. Apr. 7,
2005) (dismissing case as frivolous). Defendant has requested in the alternative that the Court
exercise its discretion "to withdraw [plaintiff's ] IFP privileges," Def.' s Mot. for Reconsideration
at 6, but he has not in any way shown that plaintiff has abused the privilege to proceed IFP. See
Thompson, 492 F.3d at 439 (quoting Butler v. Dep 't ofJustice, 492 F.3d 440, 446-47 (D.C. Cir.
2007)) (requiring examination of"the number, content, frequency, and disposition of [the
prisoner's] previous filings to determine if there is a pattern of abusing the IFP privilege in his
litigation history") (brackets in original). Accordingly, it is
ORDERED that defendant's motion to reconsider the order granting plaintiff's in forma
pauperis motion [Dkt. # 12] is DENIED; and it is further
ORDERED that defendant's motion for an enlargement of time to answer or otherwise
respond to the complaint [Dkt. # 13] is GRANTED. Defendant shall respond to the complaint
by August 20,2012.
SO ORDERED.
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