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Day v. Maynard

United States Court of Appeals, Tenth Circuit
Dec 20, 1999
200 F.3d 665 (10th Cir. 1999)

Summary

holding that "a dismissal without prejudice counts as a strike, so long as the dismissal is made because the action is frivolous, malicious, or fails to state a claim."

Summary of this case from Pointer v. Wilkinson

Opinion

No. 99-7059.

Filed December 20, 1999.

Motion to proceed in forma pauperis denied.

Before BALDOCK, PORFILIO, and BRORBY, Circuit Judges.


ORDER


On November 3, 1999, this court issued an order notifying Mr. Day that he had three strikes pursuant to 28 U.S.C. § 1915(g). We ordered Mr. Day either to show cause why his appeal should not be dismissed for failure to prepay the entire filing fee as required by § 1915(g), or to show that the provisions of the Prison Litigation Reform Act do not apply to this proceeding. Having now considered the arguments raised in Mr. Day's response to the court's order to show cause, and also those raised in his motion to proceed in forma pauperis, we conclude that § 1915(g) applies and that he is responsible for full payment of the filing fee.

In his motion to proceed in forma pauperis, Mr. Day argued that (1) none of the matters on which the district court relied in determining that he had three strikes was dismissed as frivolous or malicious; and (2) all of the cited cases were dismissed without prejudice and therefore did not count as strikes for purposes of § 1915(g). The court is not persuaded by these arguments.

The United States District Court for the District of Connecticut dismissed Day v. Keefe Supply Co. et al., No. 95-CV-2772 (D. Conn. Sept. 10, 1996), because it "lacked an arguable basis in law." This is the equivalent of a dismissal for frivolousness. See Neitzke v. Williams, 490 U.S. 319, 325 (1989). The other two strikes were for cases dismissed for failure to state a claim upon which relief may be granted, which is also grounds for a strike. See 28 U.S.C. § 1915(g). Moreover, a dismissal without prejudice counts as a strike, so long as the dismissal is made because the action is frivolous, malicious, or fails to state a claim. See, e.g., Rivera v. Allin, 144 F.3d 719, 731 (11th Cir.), cert. dismissed, 119 S.Ct. 27 (1998), petition for cert. filed (U.S. Sept. 21, 1998) (No. 98-6127); Patton v. Jefferson Correctional Ctr., 136 F.3d 458, 463-64 (5th Cir. 1998).

To the extent this court's unpublished decision in Jones v. Brooks, No. 97-1464, 1998 WL 161038, at **1, n. 3 (10th Cir. Apr. 1, 1998) is to the contrary, it has no precedential value and we decline to follow it. See 10th Cir.R. 36.3(A).
The holding that cases dismissed without prejudice counted as strikes against Mr. Day is a narrow one. We do not consider, for example, whether a case dismissed without prejudice, then refiled and dismissed a second time would count as two separate strikes. That question is not presented in this case.

We turn next to the arguments raised in Mr. Day's response to the order to show cause. He asserts that this court should not have counted Day v. Meachum, No. 93-CV-2420 (D. Conn. Dec. 2, 1993) as a strike, because the order dismissing that case was filed before the enactment of PLRA. This court rejected a similar argument in Green v. Nottingham, 90 F.3d 415, 418-20 (10th Cir. 1996) (holding that § 1915(g) merely announced a new procedural rule and that this court may therefore count prisoner suits dismissed prior to the statute's enactment as strikes). Mr. Day's argument lacks merit.

Finally, Mr. Day argues that he falls under an exception to the three strikes provision for prisoners "under imminent danger of serious physical injury." § 1915(g). He claims that his life is in danger in the Connecticut prison where he now resides. This allegation is not sufficient to obtain relief under the "imminent danger" exception, however, since his complaint targets Oklahoma defendants who he fails to show have any control over his current conditions of confinement. Cf. Ashley v. Dilworth, 147 F.3d 715, 718 (8th Cir. 1998) (Beam, J., dissenting) ("[B]y its plain language, [§ 1915(g)] limits the relief we can offer to such a prisoner to prospective relief for the actions that have caused the immediate risk of harm.").

We conclude that the provisions of the Prison Litigation Reform Act apply to this proceeding, that Mr. Day has three strikes for purposes of 28 U.S.C. § 1915(g), and that he is responsible for full prepayment of the entire filing fee. Accordingly, Mr. Day's motion to proceed in forma pauperis is DENIED. If Mr. Day fails to pay the full filing fee for this appeal to the district court within twenty days of the date this order is entered, his appeal will be DISMISSED.


Summaries of

Day v. Maynard

United States Court of Appeals, Tenth Circuit
Dec 20, 1999
200 F.3d 665 (10th Cir. 1999)

holding that "a dismissal without prejudice counts as a strike, so long as the dismissal is made because the action is frivolous, malicious, or fails to state a claim."

Summary of this case from Pointer v. Wilkinson

holding that a prisoner does not meet the imminent-danger exception when he is no longer facing risk from the defendants he sues, because he has since been transferred to a different prison

Summary of this case from Foster v. Ohio D.R.C.

holding that a prisoner does not meet the imminent-danger exception when he is no longer facing risk from the defendants he sues, because he has since been transferred to a different prison

Summary of this case from Johnson v. Dixon-Ingalls

holding that a prisoner does not meet the imminent-danger exception when he is no longer facing risk from the defendants he sues, because he has since been transferred to a different prison

Summary of this case from Tippins v. Holden

holding that a plaintiff cannot show imminent danger based on events that occurred at a facility other than his current place of incarceration

Summary of this case from McGore v. Leech

holding that allegations against officials who have no control over the plaintiff's present conditions of confinement are insufficient to invoke the exception

Summary of this case from Haynes v. Prelesnik

holding that a plaintiff cannot show imminent danger based on events that occurred at a facility other than his current place of incarceration

Summary of this case from Wright v. Woods

holding that a plaintiff cannot show imminent danger based on events that occurred at a facility other than his current place of incarceration

Summary of this case from McGore v. Unknown Part(y)(ies)

finding that where the named defendant lacked "any control" over plaintiff's physical care, the inmate could not satisfy the "imminent danger" requirement to bypass the prepayment of filing fees

Summary of this case from Harper v. Patton

concluding that assertion of imminent danger at one prison is insufficient when prisoner's claims relate only to actions by officials in a different prison

Summary of this case from Boles v. Colo. Dep't of Corr.

rejecting the allegation that the plaintiff was in imminent danger of serious physical injury, because he resided in a Connecticut prison, but his complaint targeted Oklahoma defendants who did not have any control over the plaintiff's current conditions of confinement

Summary of this case from Wilbon v. Mich. Dep't of Corr.

stating that "a dismissal without prejudice counts as a strike, so long as the dismissal is made because the action is frivolous, malicious, or fails to state a claim."

Summary of this case from McLean v. U.S.
Case details for

Day v. Maynard

Case Details

Full title:JASON M. DAY, Plaintiff-Appellant, v. GARY D. MAYNARD, Director of the…

Court:United States Court of Appeals, Tenth Circuit

Date published: Dec 20, 1999

Citations

200 F.3d 665 (10th Cir. 1999)

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