Crawford v. Doe, 2:07cv180.

• Decision Date: 24 April 2007
• Docket Number: No. 2:07cv180.,2:07cv180.
• Citation: 484 F.Supp.2d 446
• Parties: Curtis E. CRAWFORD, Plaintiff, v. John DOE, et al., Defendants.
• Court: U.S. District Court — Eastern District of Virginia

484 F.Supp.2d 446

Curtis E. CRAWFORD, Plaintiff, v. John DOE, et al., Defendants.

No. 2:07cv180.

United States District Court, E.D. Virginia, Norfolk Division.

April 24, 2007.

Curtis E. Crawford, Washington, DC, Pro se.

ORDER

REBECCA BEACH SMITH, District Judge.

Plaintiff, a former federal inmate, brings this pro se action, pursuant to Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), and the Federal Tort Claims Act, 28 U.S.C. § 1346, for compensatory damages. Plaintiff claims he asked a correctional officer to copy a document that plaintiff intended to file in the United States Supreme Court. The correctional officer asked an inmate, who worked for the Unit Manager, to copy the document. The inmate shredded the document. Plaintiff demands $15,000,000.00.

On July 14, 2006, plaintiff submitted this action to the United States District Court for the Southern District of West Virginia. By order entered March 27, 2007, that court transferred this action to the United States District Court for the Eastern District of Virginia, Richmond Division. By order entered April 13, 2007, this action was transferred to this court.

On July 24, 2006, plaintiff filed a request to proceed in forma pauperis. Plaintiff's motion to proceed in forma pauperis was not ruled on by the prior courts. Thus, this court will consider plaintiff's motion. Title 28 U.S.C. § 1915(g), known as the three (3) "strikes" rule, prohibits a prisoner from bringing a civil action or appealing a judgment in a civil action under § 1915 if "the prisoner has, on three (3) or more 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 harm."

Plaintiff has had numerous actions dismissed on the grounds that they are frivolous. In this court alone, plaintiffs complaints in Action Number 2:95cv605, Action Number 2:96cv663, and Action Number 2:04cv218 were dismissed for frivolousness.¹ In addition, plaintiff's current complaint does not allege a situation that would place him in imminent danger of serious physical harm.

This action presents a unique situation. Plaintiff filed this action and his motion to proceed in forma pauperis in the wrong court. This action was transferred twice prior to arriving in this court, where plaintiff had filed his three (3) prior frivolous actions. During the nine (9) months that this action was pending in other courts, plaintiff was released from incarceration. Thus, the court must determine whether plaintiff, who is no longer a prisoner, is still subject to § 1915(g), which only applies to prisoners.

Given the unusual circumstances leading to this situation, it is not surprising that no circuit court has addressed the issue of whether an inmate who files an action while incarcerated, but is released prior to the court ruling on a motion to proceed in forma pauperis, is still subject to § 1915(g).² Had plaintiff filed his complaint in this court, the determination that he had three (3) previous cases dismissed as frivolous would have been made quickly and he would have been ordered to pay the full filing fee long before he was released from incarceration, and thus, whether plaintiff is subject to § 1915(g) would not have been an issue.

The Court of Appeals for the Fourth Circuit determined that an inmate who is released during the pendency of his action is not subject to § 1915(b)(2), which requires that prisoners continue making installment payments after they have paid the initial fee. Deblasio v. Gilmore, 315 F.3d 396, 399 (4th Cir.2003). However, the Fourth Circuit based this decision on the fact that, once a prisoner is released, there is no mechanism for deducting payments from prisoner's inmate account, which is the sole mechanism authorized by the statute. That concern is not present in this case. Section 1915(g) merely prohibits a prisoner plaintiff from proceeding in forma pauperis after three (3) or more cases filed by that prisoner are dismissed on the grounds of frivolousness, maliciousness, or failure to state a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious physical harm. The Seventh Circuit has held that the...