United States District Court, E.D. Missouri, Southeastern Division
GEORGE F. ALDRIDGE, JR., Plaintiff,
CYNTHIA REESE, Defendant.
MEMORANDUM AND ORDER
W. Sippel, United States District Judge.
matter is before the Court on the motion of defendant Cynthia
Reese, by and through counsel, to revoke plaintiff George F.
Aldridge, Jr.'s in forma pauperis status and to dismiss
his case pursuant to 28 U.S.C. § 1915(g). For the
reasons discussed below, the Court will deny defendant's
filed this action on October 16, 2018, the date he placed his
complaint into the prison mailing system. (Docket No. 1 at
10). The complaint was brought pursuant to 42 U.S.C. §
1983 and named Cynthia Reese as the sole defendant. She was
sued in both her official and individual capacities.
Plaintiff claimed that defendant failed to have him
transferred out of a suicide cell in which he was living in
substandard conditions. Those conditions allegedly included a
lack of hygiene products, bedding, and clothing. (Docket No.
1 at 3-4).
March 1, 2019, the Court entered an order granting plaintiff
in forma pauperis status and assessing an initial partial
filing fee of $1.70. (Docket No. 9). Furthermore, the Court
dismissed plaintiff's official capacity claim against
defendant. However, the Clerk of Court was directed to issue
process on defendant in her individual capacity.
Defendant's waiver of service was returned executed on
March 26, 2019. (Docket No. 16).
filed the instant motion on April 25, 2019. (Docket No. 22).
She argues that plaintiff's in forma pauperis status
should be revoked pursuant to 28 U.S.C. § 1915(g)
because plaintiff has filed three prior lawsuits that have
been dismissed as frivolous, malicious, or for failure to
state a claim. (Docket No. 22 at 2). Specifically, defendant
asserts that plaintiff has accrued “strikes” in
the following cases: Aldridge v. Wilhite, No.
1:08-cv-116-LMB (E.D. Mo. Aug. 26, 2008); Aldridge v.
Wallace, No. 1:15-cv-159-SNLJ (E.D. Mo. Sept. 29, 2015);
and Aldridge v. Browning, No. 1:18-cv-55-SNJL (E.D.
Mo. Nov. 8, 2018). (Docket No. 22 at 2-3). Defendant further
states that plaintiff's claims do not qualify for the
imminent danger exception to § 1915(g), because the
events alleged in the complaint took place over two years
earlier. (Docket No. 22 at 3).
Prison Litigation Reform Act of 1996 enacted what is commonly
known as the “three strikes” provision of 28
U.S.C. § 1915(g). Orr v. Clements, 688 F.3d
463, 464 (8th Cir. 2012). Section 1915(g) provides
in relevant part:
In no event shall a prisoner bring a civil
action…under this section if the prisoner has, on
three or more prior occasions, while incarcerated or detained
in any facility, brought an action…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). Pursuant to this section, an
indigent inmate who has acquired three strikes may file a
lawsuit if he or she is under imminent danger of serious
physical injury. Higgins v. Carpenter, 258 F.3d 797,
800 (8th Cir. 2001). This exception provides a
“safety valve for the three strikes rule to prevent
impending harms.” Martin v. Shelton, 319 F.3d
1048, 1050 (8th Cir. 2003). Past allegations of
imminent danger, however, are not sufficient. Ashley v.
Dilworth, 147 F.3d 715, 717 (8th Cir. 1998).
Court agrees that plaintiff has accrued at least two strikes.
In Aldridge v. Wilhite, No. 1:08-cv-116-LMB (E.D.
Mo. Aug. 26, 2008), plaintiff's complaint was dismissed
as legally frivolous and for failure to state a claim
pursuant to 28 U.S.C. § 1915(e)(2)(B). Plaintiff did not
file an appeal from this dismissal. Similarly, in
Aldridge v. Wallace, No. 1:15-cv-159-SNLJ (E.D. Mo.
Sept. 29, 2015), plaintiff's case was dismissed for
frivolity and failure to state a claim. In this case,
plaintiff did file an appeal. On March 17, 2016, the Eighth
Circuit Court of Appeals summarily affirmed the dismissal.
Court does not agree that Aldridge v. Browning, No.
1:18-cv-55-SNJL (E.D. Mo. Nov. 8, 2018) constitutes a strike
pursuant to § 1915(g). As defendant notes, this case was
dismissed for failure to state a claim on November 8, 2018.
Plaintiff filed a notice of appeal on December 20, 2018. He
filed a supplemental notice of appeal on January 10, 2019.
This appeal is currently pending before the Eighth Circuit
Court of Appeals. Because the appeal is pending, it is
possible that the § 1915(e)(2)(B) dismissal in
Aldridge v. Browning could be reversed. If that were
to occur, plaintiff would no longer have three strikes,
making dismissal pursuant to § 1915(g) inappropriate. In
other words, plaintiff's third strike is not yet final.
Therefore, the Court must deny defendant's motion to
revoke plaintiff's in forma pauperis status and to
dismiss pursuant to § 1915(g).
IT IS HEREBY ORDERED that defendant Cynthia
Reese's motion to revoke plaintiffs in forma pauperis
status and to dismiss (Docket No. 22) ...