Matthews v. Federal Bureau of Investigations
Matthews v. Federal Bureau of Investigations
Opinion of the Court
MEMORANDUM OPINION AND ORDER
Plaintiff Alexander Otis Matthews, a pro se prisoner, brings this action under the
After Matthews indicated that he would object to the FBI’s production, the FBI moved for summary judgment. Dkt. 24. Although the FBI briefed only the merits of the dispute in its opening brief, it raised a new, threshold issue in its reply brief. Dkt 28. As the FBI explained, Matthews is a pro se prisoner proceeding in forma pauperis, who has litigated at least “26 civil matters filed in the U.S. district courts and 20 appellate matters in the U.S. circuit courts.” Id. at 2. The FBI further reported that, “[wjithout reviewing every case, at least four decisions show that his litigation has resulted in a ruling that he has failed to state a claim.” Id.
If correct, that litigation record poses a problem for Matthews under the Prison Litigation Reform Act, and, in particular, under the “three strikes” rule contained in 28 U.S.C. § 1915(g). That rule bars a prisoner from proceeding in forma pauperis “if the prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility, brought an action ... dismissed on the ground that it is frivolous, malicious, or fails to state a claim upon which relief may be granted.”
Matthews, then, filed a sur-reply addressing the four “strikes” that the FBI identified in its reply brief. Dkt. 29. As to two of the “strikes,” Matthews argues that the apparent dismissals for failure to state a claim were mistakes that were subsequently corrected. Id. at 1. In another, he says that a magistrate judge erroneously denied his request to file based on the “three strikes” rule, but that the district judge corrected that error. Id. And, in the final case, he argues that the dismissal for failure to state a claim “is on appeal or is still under a motion for reconsideration,” id. and thus should not count for present purposes. The Court notes, however, that a dismissal for one of the reasons proscribed by § 1915(g) counts as a “strike,” notwithstanding a pending appeal. See Coleman v. Tollefson, — U.S. -, 135 S.Ct. 1759, 1761, 191 L.Ed.2d 803 (2015).
In its final brief on the issue, the FBI concedes that, in two of the cases on which it relied, the question whether Matthews has “three strikes” is “still pending.” Dkt. 30 at 4. From this concession, however, the FBI goes on to assert that “it no longer urges the Court to dismiss this case without prejudice until Plaintiff pays his fees.”
Upon the Court’s own review of Matthews’s litigation records, it appears that, before Matthews filed the instant action on April 16, 2015, he had filed at least four different actions that were dismissed as frivolous or for failure to state a claim, and which therefore constitute “strikes” for purposes of 28 U.S.C. § 1915(g):
(1) Matthews v. Sobh, No. 12-cv-294 (E.D. Va. Apr. 11, 2012), ECF No. 2;
(2) Matthews v. Hull, No. 13-cv-450 (E.D. Va. Feb. 12, 2014), ECF No. 35;
(3) Matthews v. Sullivan, No. 14-cv-500 (D. Md. May 23, 2014), ECF No. 9;
(4) Matthews v. HSBC Bank, USA, Nat’l Ass’n, No. 14-cv-810 (E.D. Va. July 26, 2014), ECF No. 15.
The Court, accordingly, must dismiss the action without prejudice.
CONCLUSION
The case is hereby DISMISSED without prejudice pursuant to 28 U.S.C. § 1915(g).
SO ORDERED.
. Although the "three strikes” rule does not apply if the prisoner is “under imminent danger of serious physical injury,” id. that exception clearly does not apply in the present context.
Reference
- Full Case Name
- Alexander Otis MATTHEWS v. FEDERAL BUREAU OF INVESTIGATIONS
- Cited By
- 2 cases
- Status
- Published