Ellison v. Claiborne County et al, No. 3:2020cv00163 - Document 15 (E.D. Tenn. 2020)
Court Description: MEMORANDUM OPINION AND ORDER: Defendants' motion to dismiss [Doc. 11] is DENIED. Defendants shall file an answer or other response to Plaintiff's complaint within twenty-one (21) days of entry of this memorandum and order . If any Defendant fails to timely respond to the complaint, any such failure may result in entry of judgment by default. Signed by District Judge J Ronnie Greer on August 10, 2020. (copy mailed to Terry Edward Ellison 43740 c/o SCOTT COUNTY JUSTICE CENTER, 575 SCOTT HIGH DR, HUNTSVILLE, TN 37756) (AYB)
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Ellison v. Claiborne County et al Doc. 15 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF TENNESSEE AT KNOXVILLE TERRY EDWARD ELLISON, Plaintiff, v. RUSTY LOZA and SOUTHERN HEALTH PARTNERS, Defendants. ) ) ) ) ) ) ) ) ) ) No. 3:20-CV-00163-JRG-HBG MEMORANDUM OPINION AND ORDER Plaintiff is proceeding pro se and in forma pauperis in a prisoner civil rights action for violation of 42 U.S.C. § 1983. Defendants have filed a motion to dismiss this action pursuant to the “three strikes” provision of 28 U.S.C. § 1915(g), or alternatively, to require Plaintiff to pay the entire filing fee in order to proceed in this cause [Doc. 11]. Plaintiff has not responded to the motion, and the deadline to do so has passed. L.R. E.D. Tenn. 7.1. For the reasons set forth below, the Court finds Defendants’ motion should be DENIED. I. LEGAL STANDARD The “three strikes” provision of the Prison Litigation Reform Act (“PLRA”) provides: In no event shall a prisoner bring a civil action or appeal a judgment in a civil action or proceeding under this section if the prisoner has, on three or more prior 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 injury. 28 U.S.C. § 1915(g). II. ANALYSIS Plaintiff filed the instant action on April 15, 2020 [See Doc. 2 at 7-8]. See Houston v. Lack, 487 U.S. 266, 276 (1988) (finding “notice of appeal was filed at the time petitioner delivered it to Case 3:20-cv-00163-JRG-HBG Document 15 Filed 08/10/20 Page 1 of 3 PageID #: 52 Dockets.Justia.com the prison authorities for forwarding to the court clerk”). At that time, Plaintiff had filed three lawsuits in this Court that have been dismissed as frivolous and/or for failure to state a claim: Ellison v. Claiborne County Jail, et al., No. 3:11-cv-511; Ellison v. Claiborne County, et al., No. 3:20-cv-88; and Ellison v. Brooks, No. 3:20-cv-175. However, only the first of these strikes existed at the time the instant lawsuit was filed. The Court finds that § 1915(g) does not bar a plaintiff from proceeding in forma pauperis in a lawsuit that was filed before the plaintiff received at least three strikes. Campbell v. Davenport Police Dep’t, 471 F.3d 952, 952 (8th Cir. 2006) (“Section 1915(g) does not apply unless the inmate litigant has three strikes at the time he files his lawsuit or appeal.”); Daniel v. Lafler, No. 08-13817, 2009 WL 2386064, at *2 (E.D. Mich. July 28, 2009) (“Under the requirements of the statute, the court cannot apply dismissals of cases for purposes of the ‘three strikes’ rule when the § 1915 dismissals occurred following the filing of the lawsuit at issue.”). Accordingly, Defendants’ motion will be denied. III. CONCLUSION For the reasons set forth above, it is ORDERED: 1. Defendants’ motion to dismiss [Doc. 11] is DENIED; 2. Defendants shall file an answer or other response to Plaintiff’s complaint within twenty-one (21) days of entry of this memorandum and order. If any Defendant fails to timely respond to the complaint, any such failure may result in entry of judgment by default; and 3. Plaintiff is ORDERED to immediately inform the Court and Defendants or counsel of record of any address changes in writing. Pursuant to Local Rule 83.13, it is the duty of a pro se party to promptly notify the Clerk and the other parties to the proceedings of any change in his or her address, to monitor the progress of the case, and to prosecute or defend the action diligently. E.D. Tenn. L.R. 83.13. Failure to provide a correct address to this Court within (14) fourteen days of any change in address may result in the dismissal of this action. 2 Case 3:20-cv-00163-JRG-HBG Document 15 Filed 08/10/20 Page 2 of 3 PageID #: 53 So ordered. ENTER: s/J. RONNIE GREER UNITED STATES DISTRICT JUDGE 3 Case 3:20-cv-00163-JRG-HBG Document 15 Filed 08/10/20 Page 3 of 3 PageID #: 54
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