United States District Court, S.D. Ohio, Western Division
L. LITKOVITZ UNITED STATES MAGISTRATE JUDGE.
Marvin Dearing, an inmate at the Southern Ohio Correctional
Facility (SOCF) in Lucasville, Ohio, initiated this prisoner
civil rights action by filing a pro se complaint
together with an in forma pauperis application.
(See Doc. 1). On October 20, 2016, the undersigned
granted plaintiff pauper status and ordered the collection of
the full filing fee in accordance with section 804(a)(3) of
the Prison Litigation Reform Act of 1995, 28 U.S.C. §
1915(b). (Doc. 2). Plaintiff was also permitted to proceed
with his claim under 42 U.S.C. § 1983 against the
defendant SOCF correctional employees "for their
participation in a disciplinary sanction allegedly imposed
in violation of, or in retaliation for plaintiffs exercise
of, his First Amendment rights." (See Doc. 10,
at PAGEID#: 108; see also Doc. 5, at PAGEID#: 82).
This matter is now before the Court on the defendants'
motion filed December 6, 2016, requesting that the October
20, 2016 order granting plaintiffs in forma pauperis
application be vacated and plaintiff ordered to immediately
pay the $400 filing fee on the ground that he is a
three-striker within the meaning of 28 U.S.C. § 1915(g).
(Doc. 11). Plaintiff has filed a brief opposing the
defendants' motion, and defendants have filed a brief in
reply to plaintiffs opposition memorandum. (Docs. 14-15).
prisoner's right to proceed in forma pauperis
has been restricted by Congress. In accordance with section
804(d) of the Prison Litigation Reform Act (PLRA) of 1995,
Pub. L. No. 104-134, 110 Stat. 1321, amending 28 U.S.C.
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 or detained in any facility, 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).
parties agree that plaintiff has had two cases dismissed at
the screening stage for failure to state a claim, which count
as "strikes" under § 1915(g). (See
Docs. 11, 14); see also Marvin Bearing v. Gerald McFaul,
et al, Case No. 1:01-cv-2676 (N.D. Ohio Feb. 21, 2002)
(Docs. 9-10); Marvin Bearing v. Bavid Bobby, et al.,
Case No. 4:13-cv-1500 (N.D. Ohio September 30, 2013) (Docs.
4-5). The parties, however, disagree as to whether a third
strike occurred in the plaintiffs appeal to the Sixth Circuit
from the District Court's dismissal order in Case No.
4:13-cv-1500. (See Docs. 11, 13, 15). In that third
case, the Sixth Circuit issued an order on June 10, 2014
affirming the District Court's judgment after a de
novo review based on the determination that the
"[t]he district court properly dismissed the
complaint." (Doc. 11, Affidavit of J. Gregory Glasgow,
If 5(C), at PAGEID#: 116); see also Marvin Bearing v.
Bavid Bobby, etal, No. 13-4333 (6th Cir. June 10, 2014)
courts "presented with the question whether an
affirmance can count as a strike have held that a court
should not impose a § 1915(g) strike for an appeal when
the original appellate court declined to implicate §
1915(g) reasons." Taylor v. First Med. Mgmt.,
508 F.App'x 488, 494 (6th Cir. 2012) (citing cases from
the D.C., Third, First, Tenth, and Fifth Circuits). As courts
have pointed out, "only a dismissal of an appeal as
frivolous, malicious or for failure to state a claim upon
which relief may be granted-not the affirmance of the trial
court's dismissal on any of these bases-properly counts
as a 'strike'" under the three-strikes provision
set forth in § 1915(g). Whiteside v. Collins,
No. 2:08cv875, 2011 WL 6934500, at *2 (S.D. Ohio Aug. 23,
2011) (Report & Recommendation) (citing Thompson v.
Drug Enforcement Admin., 492 F.3d 428, 436 (D.C. Cir.
2007)); see also Hill v. Ohio Dep 't of
Rehab. & Corr., No. I:15cv762, 2016 WL 1166335, at *
1 (S.D. Ohio Jan. 29, 2016) (Litkovitz, M.J.) (Report &
Recommendation) (and cases cited therein), adopted,
2016 WL 1162357 (S.D. Ohio Mar. 23, 2016)(Beckwith, J.).
undersigned has reviewed the Sixth Circuit's decision in
Case No. 13-4333. Contrary to the defendants' contention,
the Sixth Circuit merely affirmed the district court's
decision after reviewing the bases for that decision and did
not dismiss the appeal as frivolous, malicious or for failure
to state claim. Cf. Byrd v. Shannon, 715 F.3d 117,
126-27 (3rd Cir. 2013) (rejecting the argument that the
dismissal of an appeal on the ground that it was
"without merit" constituted a strike in the absence
of the explicit use of the terms "frivolous, "
"malicious, " or "fails to state a claim"
for the dismissal); see also Thompson, 492 F.3d at
436-37 (holding that because three appeals lost by the
plaintiff were affirmances as opposed to dismissals on the
ground that the appeals were frivolous, malicious or failed
to state a claim, they did not count as "strikes"
under § 1915(g)); Soto v. Birkett, No. 07-CV-l
1929-DT, 2007 WL 3121606, at *2 (E.D. Mich. Oct. 23, 2007)
(and numerous cases cited therein) (concluding in agreement
with the Fifth, Seventh, Tenth and D.C. Circuits that only
appeals "actually dismissed for being frivolous,
malicious, or for failing to state a claim upon which relief
may be granted" count as a strike under § 1915(g)
and, therefore, "a prior affirmance does not count as a
the undersigned is not persuaded by the defendants'
argument that the Supreme Court's decision in Coleman
v. Tollefson, __ U.S. __, 135 S.Ct. 1759 (2015),
supports their position. In Coleman, the Supreme
Court held that the District Court's dismissal of a
complaint as frivolous, malicious or for failure to state a
claim counted as a "strike" under § 1915(g)
even if the dismissal is the subject of a pending appeal.
Id. at 1763. In so ruling, the Court emphasized that
§ 1915(g) by its terms refers only to prior dismissal
occasions not "dismissal-plus-appellate-review."
Id. at 1763. The Court did not address the specific
issue involved in this case-z'.e., whether an affirmance
of a lower court's dismissal order, as opposed to the
dismissal of an appeal based on § 1915(g)'s
enumerated grounds, can qualify as a strike under that
statutory provision. Coleman is not applicable to
these reasons, the defendants' motion to vacate the
October 20, 2016 order granting plaintiffs in forma
pauperis application (Doc. 11) is DENIED.