Case Information
UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT JAMES A. HARNAGE, :
Plaintiff, :
: PRISONER
v. : Civil No. 3:16cv1966(AWT) :
ANTONIO SANTIAGO, et al., :
Defendants. :
RULING AND ORDER
The plaintiff, James A. Harnage, who is currently incarcerated at Corrigan-Radgowski Correctional Center in
Uncasville, Connecticut, initiated this action by filing a
complaint pro se, pursuant to 42 U.S.C. § 1983. On December 12,
2016, the court denied plaintiff’s motion to proceed in forma
pauperis under the three-strikes provision of 28 U.S.C. §
1915(g) because he previously had three cases dismissed as
frivolous or for failure to state a claim upon which relief may
be granted. See Ruling and Order, ECF No. 6. [1] The plaintiff
seeks reconsideration of that decision. After review, the court
concludes that the requested relief should be denied.
Reconsideration will be granted only if the moving party can identify controlling decisions or data that the court
overlooked and that would reasonably be expected to alter the
court’s decision. See Shrader v. CSX Transp., Inc., 70 F.3d
255, 257 (2d Cir. 1995). A motion for reconsideration may not
be used to relitigate an issue the court already has decided.
See Shrader, 70 F.3d at 257; SPGGC, Inc. v. Blumenthal, 408 F.
Supp. 2d 87, 91 (D. Conn. 2006), aff’d in part and vacated in
part on other grounds, 505 F.3d 183 (2d Cir. 2007).
The plaintiff asserts two arguments in support of his motion. First, he argues that two of the dismissals cited in
the prior order should not count as strikes because appeals of
the dismissals are pending. Second, he contends that cases
dismissed as time-barred are not frivolous and should not count
as strikes.
I. Pending Appeals
The plaintiff states that he has appealed the dismissals in Harnage v. Coletti, 3:16-cv-1537(AWT), and Harnage v. Murphy,
3:16-cv-1651 (AWT). [2] He cites cases from other circuits to
support his position that a dismissal must be affirmed on appeal
before it can constitute a strike under section 1915(g). See
Adepegba v. Hammons, 103 F.3d 383, 387 (5 th Cir. 1996) (opining
that a dismissal should not be counted as a strike until the
prisoner has exhausted or waived an appeal); see also Thompson
v. Drug Enforcement Admin., 492 F.3d 428, 432 (D.C. Cir. 2007);
Campbell v. Davenport Police Dep’t, 471 F.3d 952, 953 (8 th Cir.
2006); Jennings v. Natrona County Detention Center Medical
Facility, 175 F.3d 775, 780 (10 th Cir. 1999). None of the cited
cases are binding on this court and all of the cases were
decided before the Supreme Court addressed the issue.
In 2015, the Supreme Court held that “[a] prior dismissal on a statutorily enumerated ground counts as a strike even if
the dismissal is the subject of an appeal.” Coleman v.
Tollefson, ___ U.S. ___, 135 S. Ct. 1759, 1763 (2015). The
Court noted that this interpretation of the term “dismissal” is
consistent with the manner in which district court judgments are
treated. Without a specific stay, judgments are effective as
soon as they are entered, notwithstanding any appeal that may
have been filed. Id. at 1764. The Supreme Court noted that if
a dismissal that had been counted as a strike were later
overturned, the prisoner could move to reopen any case for which
in forma pauperis status was denied based on that strike and
reapply for in forma pauperis status. See id. Thus, in light
of the Supreme Court’s decision, the plaintiff’s first argument
fails.
II. Dismissals as Time-Barred
The plaintiff argues that a dismissal based on the statute of limitations is not frivolous as that term has been defined by
the Supreme Court. See Neitzke v. Williams, 490 U.S. 319, 325
(1989) (claim is frivolous if it lacks an arguable basis in fact
or law). The court agrees that a dismissal based on statute of
limitations grounds is not frivolous. However, the plaintiff
fails to acknowledge that frivolousness is not the only basis
for dismissal under 28 U.S.C. §§ 1915 and 1915A. The court must
dismiss a case that is frivolous or malicious or that fails to
state a claim upon which relief may be granted. See 28 U.S.C.
§§ 1915(e)(2)(B) and 1915A(b). Thus, the fact that the claims
are not frivolous does not render the court’s decision
incorrect.
The plaintiff also argues that a dismissal on statute of limitations grounds should not count as a strike because it is
based on an affirmative defense. Again, he cites nonbinding
cases from other circuits to support his position. See Butler
v. Department of Justice, 492 F.3d 440, 443-45 (D.C. Cir.
2007)(considering dismissal for failure to prosecute); Thompson,
492 F.3d at 437 (dismissal for lack of jurisdiction is not
frivolous and is different from dismissal for failure to state a
claim upon which relief may be granted); Myles v. United States,
416 F.3d 551, 553 (7 th Cir. 2005) (dismissal as time-barred
should not count as a strike); Daniels v. Woodford, No. CV 07-
6975PA(JC), 2008 WL 2079010, at *6, 8 (C.D. Cal. May 13,
2008)(dismissals for failure to prosecute or after summary
judgment do not count as strikes).
First, a ruling on a motion to proceed in forma pauperis is not the proper vehicle to challenge the correctness of a prior
dismissal. If the plaintiff believes that a prior dismissal was
improper, his recourse is an appeal of the dismissal. One of
the cases cited by the plaintiff supports this position. See
Thompson, 492 F.3d at 438-39 (“[E]ven though a court may believe
that a previous court erred by dismissing … under Rule 12(b)(6)
or by failing to do so, all that matters for the purpose of
counting strikes is what the earlier court actually did, not
what it ought to have done.”).
Second, even though the challenge to the prior dismissal is not properly asserted in this motion, the court will address the
argument. The Second Circuit has not specifically addressed
this issue. However, the Second Circuit has held that “the
apparent purposes of Section 1997e(c)(3) and of the three
strikes provision of Section 1915(g) strongly imply that the
dismissal contemplated in these provisions is one that finally
terminates the action because of a determination that it
ultimately cannot succeed.” Snider v. Melindez, 199 F.3d 108,
111 (2d Cir. 1999).
Other district courts within the Second Circuit have held that the court may properly dismiss a case sua sponte for
failure to state a claim upon which relief may be granted where
an affirmative defense, like the statute of limitations, is
apparent on the face of the complaint. See Jones v. Moorjani,
No. 13 Civ. 2247(PAC)(JLC), 2013 WL 6569703, at *8 n.16
(S.D.N.Y. Dec. 13, 2013); see also Nealy v. Kamas, No.12-CV-
6201-CJS, 2013 WL 140111, at *2 (W.D.N.Y. Jan. 10, 2013)
(dismissal on statute of limitations grounds is dismissal for
failure to state a claim upon which relief may be granted and
counts as a strike). This court agrees with the reasoning in
those opinions.
Thus, the dismissals in all three cases on statute of limitations grounds constituted strikes for purposes of 28
U.S.C. § 1915(g), and the plaintiff’s second argument fails.
III. Conclusion
The plaintiff’s motion for reconsideration [ ECF No. 7 ] is hereby GRANTED . After careful review, the relief requested is
hereby DENIED and the ruling denying plaintiff’s motion to
proceed in forma pauperis under the three-strikes provision of
28 U.S.C. § 1915(g) remains in effect.
It is so ordered.
Signed this 13th day of March 2017 at Hartford, Connecticut.
/s/AWT ___ Alvin W. Thompson United States District Judge
[1] The prior cases that the court dismissed as frivolous or for failure to state a claim upon which relief may be granted are: Harnage v. Torres, 3:15cv1843(AWT) (dismissed January 11, 2016); Harnage v. Coletti, 3:16cv1537(AWT)(dismissed November 1, 2016); and Harnage v. Murphy, 3:16cv1651(AWT)(dismissed November 1, 2016).
[2] The court notes that on December 5, 2016, the Court of Appeals for the Second Circuit affirmed the dismissal, on statute of limitations grounds, of the complaint filed in Harnage v. Torres, 3:15cv1843(AWT). See Harnage v. Torres, Court of Appeals Docket No. 16-437, 2016 WL 7077601 (2d Cir. Dec. 5, 2016) (Summ. Order and J. affirm’g D. Ct. J.).