UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

ALEXANDER OTIS MATTHEWS,

Plaintiff,

v. Civil Action No. 15-569 (RDM) FEDERAL BUREAU OF INVESTIGATION,

Defendant.

MEMORANDUM OPINION AND ORDER

The Court previously determined that pro se prisoner plaintiff Alexander Otis Matthews

accumulated three or more “strikes” under

(g) before he filed this action. See

Matthews v. FBI,

(D.D.C. 2016) (“Matthews I”). The Court then

dismissed the action without prejudice.

Matthews now moves for reconsideration of the

three-strikes determination under Federal Rule of Civil Procedure 59(e). See Dkt. 32. In

Matthews’s view, only one of the four prior actions which the Court identified constitutes a

strike.

The Court disagrees and will accordingly DENY the motion.

That said, the Court’s dismissal of the action was too hasty. Matthews’s “strikes” do not

bar him from prosecuting his case altogether; they merely bar him from doing so without first

paying the filing fee. To afford Matthews the chance to pay the fee, the Court, on its own

motion, will VACATE its order dismissing the case, will REVOKE Matthews’s in forma

pauperis status, and will ORDER that Matthews pay the balance of the filing fee on or before

thirty days from the date of this opinion, or the Court will dismiss his case without prejudice. I. LEGAL STANDARD

A motion to alter or amend a judgment under Rule 59(e) “is discretionary and need not be

granted unless the district court finds that there is an intervening change of controlling law, the

availability of new evidence, or the need to correct a clear error or prevent manifest injustice.”

Ciralsky v. CIA,

(D.C. Cir. 2004) (internal quotation mark omitted). Such

motions are “generally disfavored” absent “extraordinary circumstances.” Dage v. Johnson,

(D.D.C. 2008). A Rule 59(e) motion “is not a vehicle to present a new legal

theory that was available prior to judgment,” Patton Boggs LLP v. Chevron Corp.,

(D.C. Cir. 2012), nor is it an opportunity “to reargue facts and theories upon which a court

has already ruled,” New York v. United States,

(D.D.C. 1995).

II. ANALYSIS

Plaintiffs must ordinarily pay a filing fee before instituting a civil action.

. Individuals unable to do so may seek in forma pauperis (“IFP”) status. Prisoners

granted IFP status must still pay the full filing fee over time, but they need not pay in advance in

order to commence the action.

(b); see Thompson v. DEA,

(D.C. Cir. 2007); Credico v. DHS,

(D.D.C. 2016).

The so-called “three strikes” rule in

(g), however, “limits courts’

discretion to grant IFP status to prisoners with a track record of frivolous litigation.” Thompson,

. That rule bars prisoners from proceeding IFP “if the prisoner has, on 3 or more

prior occasions, while incarcerated or detained in any facility, brought an action . . . dismissed on

the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be

granted.” § 1915(g). The statute excepts prisoners “under imminent danger of serious physical

injury,” id., but Matthews does not invoke that provision here.

2 A. Three-Strikes Determination

In its prior opinion, the Court held 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

(g).”

Matthews I,

. In particular, the Court identified the following cases:

(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; and

(4) Matthews v. HSBC Bank, USA, Nat’l Ass’n, No. 14-cv-810,

(E.D. Va. July 26, 2014), ECF No. 15.

Matthews now disputes that three of these actions constitute “strikes.” See Dkt. 32 at 1–2.

The Court considers each action in turn.

1. Dismissal of Matthews v. Sobh (Strike 1)

As to the first putative strike, Matthews contends that the dismissal of his action for

failure to state a claim in Matthews v. Sobh, No. 12-cv-294 (E.D. Va. Apr. 11, 2012), ECF No. 2,

should not count because Matthews “has a [pending] motion . . . to remove that strike.” Dkt. 32

at 2. The Court is unconvinced.

For one, Matthews’s factual premise is incorrect: no such motion is pending. In April

2012, the Sobh court entered final judgment dismissing Matthews’s action for failure to state a

claim. Sobh, ECF No. 2 at 4–5. In March 2014—almost two years later—Matthews filed a

“Motion to Remove Improper Strike.” Sobh, ECF No. 4. But, because his motion “identifie[d]

no procedural vehicle . . . which would enable the [c]ourt to grant the relief he seeks,” the court

denied the motion “without prejudice to [Matthews’s] ability to renew his request and to include

3 a citation to the procedural vehicle upon which he relies.” Sobh, ECF No. 5 at 1. Matthews has

not renewed his motion in the prescribed manner. Instead, in February 2015, he filed a

“supplement” to his motion, which again failed to specify any procedural basis. Sobh, ECF No.

7. The “supplement” merely presented arguments “[i]n addition” to those he raised earlier.

. In light of this background, and because the Sobh docket has now been dormant for more

than two years, it seems safe to conclude that the Sobh court does not consider any motion to be

pending. 1 The court’s denial of Matthews’s “Motion to Remove Strike” thus remains in effect.

In any event, the dismissal in Sobh qualifies as a strike notwithstanding the supposedly

pending motion. Although the parties cite no squarely on-point precedent, in Coleman v.

Tollefson,

(2015), the Supreme Court answered an analogous question with

respect to pending appeals. “A prior dismissal on a statutorily enumerated ground counts as a

strike,” the Supreme Court held, “even if the dismissal is the subject of an appeal.”

(emphasis added) (abrogating in part

F.3d at 432–33). As explained below, the

Supreme Court’s reasoning in Coleman suggests that a dismissal on a statutorily enumerated

ground counts as a strike, even if it is the subject of a pending motion for reconsideration.

First, Coleman reasoned that the phrase “prior occasion” in § 1915(g) refers to single

event—the order dismissing the case. The Supreme Court explained:

1 Matthews’s putative motion in Sobh does not appear on the Administrative Office’s March 2016 report of motions pending six months or more, despite the fact that Matthews filed his “supplement” some thirteen months before that date. See

(a)(1); Admin. Office of the U.S. Courts, Civil Justice Reform Act Table 7W—Report of Civil Cases Pending Over Three Years for Period Ending March 31, 2016, at 992 (Oct. 25, 2016), available at http://www.uscourts.gov/sites/default/files/data_tables/cjra.7.0331.2016.pdf.

4 Linguistically speaking, we see nothing about the phrase “prior occasions” that would transform a dismissal into a dismissal-plus-appellate-review. An “occasion” is “a particular occurrence,” a “happening,” or an “incident.” Webster's Third New International Dictionary 1560 (3d ed. 1993). And the statute provides the content of that occurrence, happening, or incident: It is an instance in which a “prisoner has . . . brought an action or appeal in a court of the United States that was dismissed on” statutorily enumerated grounds. § 1915(g). Under the plain language of the statute, when [the plaintiff] filed the suits at issue here, he had already experienced three such “prior occasions.”

(first alteration in original). So too, then, did the dismissal order in Sobh

constitute a “prior occasion” on which Matthews brought an action dismissed on statutorily

enumerated grounds. A pending motion for reconsideration, like a pending appeal, does not

change that fact.

Second, Coleman found support for its holding in “the way in which the law ordinarily

treats trial court judgments.”

. “[A] trial court’s judgment (say, dismissing a case)

normally takes effect despite a pending appeal,” the Supreme Court observed.

“And a

judgment’s preclusive effect is generally immediate, notwithstanding any appeal.”

The same

generally holds for motions under Federal Rule of Civil Procedure 60(b) for relief from a

judgment or order. See Fed. R. Civ. P. 60(c)(2) (“The motion [for relief from a judgment or

order] does not affect the judgment’s finality or suspend its operation.”). 2

Finally, Coleman relied on the three-strikes rule’s statutory purpose, which the Supreme

Court described as follows:

2 Given that Matthews filed his putative motion in Sobh thirty-two months after the court entered judgment, whatever motion may be pending in that case cannot reasonably be construed as a motion for reconsideration under Rule 59(e). See Fed. R. Civ. P. 59(e) (requiring that such motions “be filed no later than 28 days after the entry of the judgment”).

5 The “three strikes” provision was “designed to filter out the bad claims and facilitate consideration of the good.” To refuse to count a prior dismissal because of a pending appeal would produce a leaky filter. Appeals take time. During that time, a prisoner could file many lawsuits, including additional lawsuits that are frivolous, malicious, or fail to state a claim upon which relief may be granted.

(citation omitted) (quoting Jones v. Bock,

(2007)). Were

the law as Matthews imagines it, this filter would be far leakier. Appeals and motions for

reconsideration both “take time,” but appeals are at least subject to strict procedural

requirements. Under Matthews’s view of the law, however, a motion for relief from a judgment

or order—filed at any time, for any reason, and any number of times—would be sufficient to

suspend the effect of a strike. If that were right, prisoners could artificially suppress their strike

counts with little or no limitation. Such an interpretation would actually encourage frivolous

filings, undermining the statute’s purpose.

For all these reasons, the Court holds that the Saub v. Matthews dismissal constitutes a

strike.

2. Dismissal of Matthews v. Hull (Strike 2)

With respect to the second putative strike, Matthews concedes that the dismissal of his

action for failure to state a claim in Matthews v. Hull, No. 13-cv-450,

(E.D.

Va. Feb. 12, 2014), constitutes a strike. Dkt. 34 at 2.

3. Dismissal of Matthews v. Sullivan (Strike 3)

The third putative strike consists of the district court’s sua sponte dismissal of Matthews

v. Sullivan, No. 14-cv-500,

(D. Md. May 23, 2014). In Sullivan, Matthews

brought claims against two federal judges in their official capacities and against his criminal

defense lawyer. The court deemed the claims against the judges frivolous and dismissed them

for failure to state a claim upon which relief could be granted.

. As to the claim against

the lawyer, the court (1) held that Heck v. Humphrey,

(1994), barred recovery; (2)

6 deemed the claim frivolous; and (3) dismissed it for failure to state a claim “without prejudice to

[Matthews’s] ability to refile his claim . . . if his federal conviction is overturned or called in[to]

question by the appropriate court.” Id. at *3.

Matthews argues that the Sullivan dismissal is not a strike because the third claim “was

dismissed without prejudice.” Dkt. 32 at 1 (emphasis added). That distinction, however, is

immaterial. As the Supreme Court has put it: “A prior dismissal on a statutorily enumerated

ground counts as a strike . . . . That, after all, is what the statute literally says.” Coleman,

. The relevant statutorily enumerated ground here is “fail[ure] to state a claim upon

which relief may be granted.”

(g). The statute makes no further distinctions

between dismissals with prejudice and those without. The Sullivan decision, moreover, did not

simply permit Matthews to re-plead to correct some technical deficiency in a pro se complaint;

rather, it held that Matthews’s third claim failed as a matter of law and was frivolous. The

“without prejudice” modifier merely recognized that the Heck v. Humphrey bar might not apply

to a future claim if a court were subsequently to set aside Matthews’s conviction. Because that

qualification applies to any claim dismissed under Heck, and because the D.C. Circuit has

established that dismissals under Heck are strikes, see In re Jones,

(D.C. Cir.

2011), there is no question that the dismissal of the Heck-barred claim in Sullivan, in

combination with the dismissal of the claims against the judges, means that the dismissal of the

case constituted a strike.

Matthews also asserts that Sullivan is not a strike because “no strike . . . was ever levied.”

Dkt. 32 at 1. To the extent that Matthews means to argue that the dismissing court must

expressly state that the dismissal counts as a strike, Matthews is incorrect. Again, what matters

is whether the dismissal occurred “on a statutorily enumerated ground.” Coleman,

7 1763. Because the court dismissed each of Matthews’s claims in Sullivan on such an enumerated

ground, that is the end of the story.

The Court holds that Matthews v. Sullivan constitutes at least Matthews’s third strike.

4. Dismissal of Matthews v. HSBC Bank

Finally, the Court’s prior opinion also identified as a strike the dismissal of Matthews’s

action in Matthews v. HSBC Bank USA, National Ass’n, No. 14-cv-810,

(E.D. Va. July 25, 2014) (“HSBC I”), mot. for reconsideration denied,

(E.D.

Va. Aug. 29, 2014) (“HSBC II”). Matthews moves this Court to reconsider that conclusion on

the grounds that the HSBC dismissal was not for failure to state a claim but for lack of

jurisdiction. Dkt. 32 at 1. Matthews is correct that “[d]ismissals for lack of jurisdiction do not

count as strikes unless the court expressly states that the action or appeal was frivolous or

malicious,” Thompson,

, which the HSBC court did not.

Several features of the HSBC litigation support the view that the dismissal was on the

merits for failure to state a claim. Most notably, the court granted the defendants’ motion to

dismiss under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim. ECF Nos. 5,

6, 16. The court also denied Matthews’s motion to remand the matter to state court, and instead

entered judgment for defendants. ECF Nos. 11, 16. And the court held that Matthews failed to

state a claim for each alleged cause of action. HSBC II,

, at *3–5.

On the other hand, the HSBC court also held that Matthews “ha[d] no standing to state a

claim.” HSBC I,

, at *1; accord HSBC II,

, at *1 (“[T]his

Court . . . dismissed Matthews’ Complaint on the procedural ground of lack of standing . . . .”).

Dismissal for lack of standing does not typically constitute a strike. Thompson,

.

The court also stated that “any rights at this issue in this case belong to [a separate limited

liability company], not to Matthews personally,” HSBC II,

, at *3, and cited a 8 Fourth Circuit case using that ground to dismiss an action for lack of jurisdiction, see Gen. Tech.

Applications, Inc. v. Exro Ltda,

, 119 (4th Cir. 2004). The record does not

explicitly state the precise basis for dismissal.

Defendant declines to tackle this question, writing in its opposition that, “since there are

already three cases that qualify as ‘strikes’ under § 1915(g), there is no need to attempt to

understand Plaintiff[’s] rationale for asking the Court to reject the HSBC Bank decision.” Dkt.

33 at 3. The Court will follow suit. It need not and does not decide whether HSBC I constitutes

a strike.

* * *

Because the Court has identified at least three of Matthews’s previously filed actions that

courts dismissed as frivolous or for failure to state a claim, the Court re-affirms its holding that

Matthews is ineligible for IFP status under

(g). Matthews’s motion for

reconsideration of that holding will, accordingly, be denied.

B. Proper Three-Strikes Remedy

The question remains, however, as to the proper remedy. In the first go around, the Court

determined that Matthews’s three-or-more strikes under § 1915(g) warranted dismissal without

prejudice. See Matthews I,

. Neither party takes issue with that aspect of

the ruling. But, having further considered the issue, the Court now takes a different approach.

To be sure, “[a] prisoner’s complaint should be dismissed if he does not qualify for in

forma pauperis status . . . and [he] fails to pay the entire filing fee within a reasonable period of

time.” Watts v. United States, No. 06-cv-1531,

, at *1 (D.D.C. Sept. 26, 2007)

(emphases added). But, by simply assuming Matthews unable to pay the fee, the Court’s

previous order deprived him of the opportunity to pay the fee and to continue with his case.

9 The better procedure, which courts in this Circuit typically follow, is to revoke a

disqualified prisoner’s IFP status and order that the filing fee be paid in full within thirty days.

See, e.g., Asemani v. U.S. Citizenship & Immigration Servs.,

, 1078–79 (D.C. Cir.

2015) (taking this approach); Pinson v. Samuels,

(D.C. Cir. 2014) (same); Mitchell

v. BOP,

(D.C. Cir. 2009) (same); Ibrahim v. District of Columbia,

(D.C. Cir. 2000) (same); Ruston v. U.S. Secret Serv.,

(D.D.C.

2010) (same); Alston v. FBI,

(D.D.C. 2010) (same); Banks v. Lappin, No.

08-cv-0152,

, at *2 (D.D.C. July 25, 2008) (same). The Court will follow that

procedure here. If Matthews fails to pay the full amount of the filing fee on or before the

designated date, the Court will then dismiss his action without prejudice.

CONCLUSION

In light of the above, Matthews’s motion for reconsideration (Dkt. 32) is hereby

DENIED. Matthews has failed to demonstrate that the Court erred in holding him ineligible for

in forma pauperis status under

(g).

Nonetheless, on the Court’s own motion, it is

ORDERED that the order dismissing the action, Dkt. 31, be VACATED and that the

corresponding opinion, Matthews v. FBI,

(D.D.C. 2016), be MODIFIED in

light of this opinion;

FURTHER ORDERED that the order granting Matthews leave to proceed in forma

pauperis, Dkt. 3, be VACATED and that his in forma pauperis status be REVOKED; and

FURTHER ORDERED that Matthews pay the balance of the filing fee on or before

June 5, 2017, or the Court will dismiss his case without prejudice.

10 The Clerk shall mail a copy of this Memorandum Opinion and Order to Matthews at his

address of record.

SO ORDERED.

/s/ Randolph D. Moss RANDOLPH D. MOSS United States District Judge

Date: May 5, 2017

11