Bushner v. Barrett

Aug 10, 2026

1:25-cv-00501

MEMORANDUM OPINION

This civil rights matter is before the Court on Defendants’ Motion to Revoke Plaintiff‘s In Forma Pauperis Status. (Doc. 10). Defendants contend that Plaintiff failed to disclose a prior prisoner civil-rights action, Bushner v. Ohio Department of Rehabilitation and Correction, et al., No. 1:22-cv-2060 (N.D. Ohio), which was dismissed pursuant to 28 U.S.C. § 1915A. For the reasons that follow, the motion is DENIED.

The Prison Litigation Reform Act provides that a prisoner may not proceed in forma pauperis if, on three or more prior occasions while incarcerated, he brought a federal action or appeal that was dismissed as frivolous, malicious, or for failure to state a claim, unless he is under imminent danger of serious physical injury. 28 U.S.C. § 1915(g). The Court‘s Application to Proceed Without Prepayment of Fees accordingly asks whether the applicant has, on three or more prior occasions, brought an action or appeal dismissed on one of those grounds. (Doc. 1 at 4). Here, Defendants identify one prior action: Bushner v. Ohio Department of Rehabilitation and Correction, et al., No. 1:22-cv-2060 (N.D. Ohio). Even assuming that dismissal constitutes a strike under § 1915(g), it establishes only one qualifying dismissal. Defendants neither contend nor demonstrate that Plaintiff had accumulated three qualifying strikes when he initiated this action. Further, Defendants have not shown that Plaintiff made a false statement in his IFP application. The application does not require a prisoner to identify every prior action filed while incarcerated. Rather, it asks whether the prisoner has sustained three or more qualifying dismissals. Id. The single dismissal identified in Defendants’ motion does not establish that Plaintiff‘s response to that question was inaccurate.

Accordingly, Defendants’ Motion to Revoke Plaintiff‘s In Forma Pauperis Status (Doc. 10) is DENIED.

IT IS SO ORDERED.

s/Stephanie K. Bowman

Stephanie K. Bowman

Chief United States Magistrate Judge